Opinion
12916/90.
Decided on February 25, 2008.
The attorneys are: ADA Victor Barrall, Office of the District Attorney, Brooklyn, NY.
Guy Raimondi, Esq., New York, NY.
Defendant was convicted of Murder in the Second Degree (PL § 125.25) and the Appellate Division subsequently affirmed her conviction ( People v Smith, 195 AD2d 580 [2nd Dept. 1993], lv denied 82 NY2d 727). Originally charged in a twin-count indictment under two separate theories of murder, defendant was acquitted of intentional murder and then convicted of depraved indifference murder in a bench trial. She now moves pursuant to CPL § 440.10 for an order vacating her judgment of conviction on the grounds that the evidence is insufficient to support her conviction under the now-changed law of depraved indifference murder, and that the new law should be applied to her case retroactively. For the following reasons, the motion is denied.
Background
Defendant's conviction arises from the murder of Gladys Queen at 390 Gates Avenue on the night of November 17, 1990. The victim, aged eighty-three, had Alzheimer's disease and walked with a cane. She required the services of a home care attendant during the daytime. At around 1:00A.M., Queen's next door neighbor, Jaqueline Levant, was returning home with her daughter when she heard unusual noises from inside Queen's apartment. Levant knocked on the victim's door, only to hear moaning, and was unable to enter the apartment because the door was locked. Levant returned to her own apartment to call the building's security guards over the intercom. One of the guards, Curtis Corbin, came upstairs to Queen's apartment where he called out to Queen, knocked, rang the doorbell and tried unsuccessfully to open the door. Corbin radioed his partner, Clinton Mitchell, for help and the Mitchell called 911.
A short time later, a woman purporting to be Queen called the security booth and said, "I'm alright, you don't have to call the police or the EMS . . . my daughters are coming over to see about me". Mitchell, however, could not cancel the initial emergency call once the authorities had been contacted.
As he patrolled the hallway outside Queen's apartment, Corbin heard someone turning the lock on Queen's door. Corbin looked and recognized defendant, whom he had known for about two months, fleeing the apartment. As defendant ran toward the stairwell Corbin saw that her clothing was bloodstained. He chased defendant into the stairwell where he saw more blood smeared on the wall, but he was unable to apprehend her.
After defendant fled Queen's apartment EMS personnel were able to enter through the now-unlocked door. Queen was found dead on the floor in a pool of blood. She had been beaten about the head and a cloth was stuffed in her throat. She was bleeding from the head, blood was spattered on the wall behind her and several bloody trophies lay around her body. At trial, the medical examiner testified that Queen had died of suffocation and blunt impact head injuries. Queen had suffered multiple skull fractures, lacerations to the head and numerous abrasions to her face, hands and arms.
Detectives took fingerprints from the victim's apartment and a positive match was made between the defendant's print and a print taken from the victim's telephone. Also, on the day after the murder Corbin identified defendant as the woman he had chased from Queen's apartment. Upon learning that the police were looking for her, defendant surrendered to the police. Defendant denied having killed Gladys Queen and maintained her innocence in her trial testimony.
The Proceedings
Defendant was charged with two counts of second degree murder under both intentional and depraved indifference theories. Following a bench trial before Justice Thaddeus Owens, she was acquitted of intentional murder but ultimately convicted under a depraved indifference theory. Defendant was sentenced on April 10, 1992 to a term of imprisonment of twenty years to life.
On May 24, 2006, defendant moved pro se to vacate her judgment of conviction pursuant to CPL § 440.10 on the grounds that the evidence was legally insufficient to establish that she killed Gladys Queen. Additionally, defendant claimed that the current law governing depraved indifference murder should be applied retroactively to her conviction because the law has since changed. Defendant also argued that she had been deprived of effective assistance of both trial and appellate counsel.
On February 7, 2007 defendant was assigned counsel to amend her moving papers and to clarify her arguments. The instant motion, filed May 30, 2007, incorporates the affirmations of defendant's previous pro se papers.
When counsel was assigned to represent defendant in this motion, he apparently abandoned defendant's claim of ineffective assistance of counsel because it is not included in the revised motion papers. Accordingly, it is not addressed here.
Defendant now moves to vacate her judgment of conviction on the basis that the trial evidence was insufficient to support her conviction for murder under a depraved indifference theory. Specifically, defendant claims that the new law governing depraved indifference murder should be applied retroactively as a special exception to the rule prohibiting retroactive application of the law.
Discussion
Defendant is barred from raising her insufficient evidence claim in a CPL § 440.10 motion because she unjustifiably failed to raise it on appeal (CPL § 440.10[c]). In her appeal, defendant claimed that the evidence was insufficient to identify her as the perpetrator, but she never contested the sufficiency of the evidence supporting the elements of the depraved indifference murder conviction. A CPL § 440.10 motion is not a substitute for an appeal and defendant already had an opportunity to raise the instant claim before the appellate court ( People v Cooks, 67 NY2d 100, 500).
While the law of depraved indifference murder has undergone substantial revision since defendant's 1992 conviction, defendant's case is governed by the law in effect at the time she was convicted ( Policano v Herbert, 7 NY3d 588, 603). In 1992 it had to be shown that the actor's reckless conduct was imminently dangerous and created a grave risk of death ( People v Register, 60 NY2d 270, 276; People v Gomez, 65 NY2d 9, 11). The escalation of reckless conduct to the gravity required for murder depended on the wantonness of the defendant's acts or whether the acts were committed "under circumstances evincing a depraved indifference to human life" (PL § 125.25). The finding of such wantonness was based not on the subjective intent of the defendant but rather on an objective assessment of the circumstances surrounding the acts and the factual setting in which the risk-creating conduct occurred ( Register at 276). The assessment of the objective circumstances was a qualitative judgment by the trier of fact ( People v Roe, 74 NY2d 20, 24).
In this case, defendant's brutal conduct directed against her vulnerable victim rose to the level of wantonness required to support a conviction for depraved indifference murder under Register. Having acquitted defendant of intentional murder, the trial court determined that "defendant's conduct was so manifestly destined to result in . . . death as to deserve the same societal condemnation as purposeful homicide" ( People v Sanchez, 98 NY2d 373, 378 [2nd Dept. 2002]; see also People v Register, 60 NY2d at 274). Defendant's conduct posed a very high risk of death where she continually struck the victim in the head, causing multiple skull fractures, and caused her to suffocate by stuffing a cloth down her throat ( see People v Curry, 158 AD2d 466, 467 [2nd Dept 1990] ["where the number of injuries showed that the defendant inflicted numerous blows, the jury was entitled to find that, by striking a three-year-old child repeatedly in the head and face with enough force to produce the injuries sustained, the defendant created a grave risk of the child's death"]; see also People v Applegate, 176 AD2d 888, 889 [2nd Dept 1991] [depraved indifference murder conviction was upheld where victim suffered multiple blows to the head] and People v Poplis, 30 NY2d 85 [victim beaten repeatedly]). Thus, the severe extent of the victim's injuries in this case entitled the trier of fact to make an objective assessment that defendant's reckless conduct created a grave risk of death.
The victim's vulnerable condition elevated the risk of death from the beating she received at the hands of the defendant. Queen was elderly, she required a cane to help her walk and she suffered from Alzheimer's disease. Her weakened condition made her particularly susceptible, unable to defend herself and more likely to die as a result of being attacked ( People v Lambert, 125 AD2d 495 [2nd Dept. 1986] [four-year-old child was beaten to death]; Curry, 158 AD2d 466 [three-year-old child died following multiple blows to the head]; see also People v Woods, 36 AD3d 525 [1st Dept. 2007] [eighty-two-year-old victim was particularly vulnerable]). While a healthy adult may have been able to act in her own defense, Queen's already-weakened state made her particularly vulnerable and posed a grave risk of death from such a brutal beating.
That defendant did not deliver a final deadly blow and instead left the imperiled victim to die also supports the depraved indifference murder conviction. It is clear from the trial testimony that Queen was alive after the blows to the head had been administered by defendant, and that defendant remained in Queen's apartment following the beating until the time she was seen fleeing. The moaning overheard by the security guard and neighbor, combined with the medical examiner's finding that death resulted both from blows to the head and from suffocation, undermines any intent by defendant to inflict a decisive lethal blow. Furthermore, defendant's abandonment of the victim and her attempt to thwart emergency responders compounded the wanton nature of the crime ( People v Henry, 132 AD2d 673 [2nd Dept 1987] [defendant struck victim in the head and abandoned her, leading to her death]; see also People v Kanelos, 107 AD2d 764 [2nd Dept. 1985] [mortally wounded victim abandoned in the snow in a deserted area]).
The Court of Appeals has recently clarified the definition of depraved indifference murder in a series of cases that distinguish between intent and depraved indifference ( People v Hafeez ( 100 NY2d 253, 259; People v Gonzalez, 1 NY3d 464; People v Payne, 3 NY3d 266; People v Suarez, 6 NY3d 202). Ultimately, the Court of Appeals overruled Register in People v Feingold, 7 NY3d 288, 294, holding that "depraved indifference is a culpable mental state" and is exclusive of intent. The Court thus abandoned Register's focus on the calculation of risk attending the defendant's conduct in favor of a subjective assessment of mental state. Although Feingold altered the depraved indifference element of depraved indifference murder, the recklessness element remains the same.
Under current law it is now rare that depraved indifference murder is applied to a one-on-one killing because depraved indifference usually applies to a situation in which the defendant engages in reckless conduct that puts multiple people at risk. Despite the change in the law, the court still recognizes a "species" of depraved indifference murder where the defendant's acts are "directed against a particular victim but are marked by an uncommon brutality coupled not with an intent to kill . . . but with depraved indifference to the victim's circumstances" ( Payne, 3 NY3d 266 at 271; see also Suarez, 6 NY3d at 212 [depraved indifference is evident when a defendant engages in a "brutal, prolonged and ultimately fatal course of conduct"]). Now, as before Register's overruling, striking a helpless victim in the head so severely as to cause death constitutes depraved indifference in that such an act evinces cruelty, brutality and callous indifference toward the life of the victim ( see People v Bowman, 847 NYS.2d 536 [1st Dept. 2007] [death of five-week-old baby following four blows to the head constituted depraved indifference murder]; see also Suarez, 6 NY3d at 213).
Even if the court were to apply the present standard articulated in Feingold, the same facts support defendant's conviction for depraved indifference murder. Although this case involves a one-on-one murder, it falls squarely under the uncommon brutality exception delineated in Payne and Suarez. The victim was beaten severely and repeatedly with several blunt objects, resulting in multiple skull fractures and extensive blood loss. The victim was also an elderly, disabled woman whose weakened condition likely hastened her death. The brutality of the attack was reflected in the gruesome crime scene and also by the act of abandoning the incapacitated victim. Moreover, the defendant tried to mislead the authorities and then left the victim, still alive and moaning, behind a locked door where aid could not reach her, thus sealing the victim's fate. Defendant's decision not to finish off her victim but instead to leave her in such perilous condition demonstrates her callous indifference to Queen's survival.
Regardless of the change in the law, defendant's case is governed by the law in effect at the time of her conviction because Feingold is not retroactive. In Policano v Herbert ( 7 NY3d 588, 603), the Court of Appeals reviewed a claim similar to the instant one and refused to apply the post- Register law of depraved indifference murder to the defendant's 2001 conviction. The Court noted that permitting retroactive application of the law might flood the courts with CPL § 440.10 motions to vacate the convictions of defendants who were properly convicted under the then-current law ( Policano, 7 NY3d at 604). The law prohibiting retroactive application is firmly established and there exists no legal basis to carve out case-by-case exceptions, as defendant now requests of this court. Nor did the Policano court suggest in any way that its decision was to be applied in such a fashion.
Accordingly, defendant's motion is denied both procedurally and on the merits. This decision shall constitute the order of the court.