AD2 order dated June 12, 2013, affirming judgment of conviction. Decision below: 107 AD3d 822, 967 NYS2d 132. Lippman, Ch.J., granted leave December 11, 2013.

ISSUES PRESENTED: (1) Whether the court erred in submitting intentional murder and depraved indifference murder to the jury in the conjunctive, rather than in the alternative, where more than one potential victim was present at the shooting. (2) Whether the court properly admitted the grand jury testimony of an unavailable witness; whether the People proved the defendant procured the unavailability through misconduct. (Assigned counsel: Denise Corsi & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)

Issues before the Court:

 

(i) Can a defendant be convicted of both depraved indifference murder and transferred intent murder for shooting and killing a single person?; (ii) Did the prosecution adequately establish (during the Sirois hearing) that the defendant procured the absence of a key witness?

 

Holding:  Judge Rivera, writing for a 4-3 majority, overturned the conviction.  All the judges appeared to agree that depraved indifference murder and transferred intent murder, while both potentially applicable to the facts (a gunfight where the defendant shot an innocent bystander), had to be charged in the disjunctive, not the conjunctive.  A defendant could not be convicted of both because to be guilty of transferred intent his mens rea must be an intent to kill the intended target while depraved indifference is a culpable mental state distinct from intentional murder.

 

The issue that split the Court, however, was the second question – the admission of an unavailable witness’s grand jury testimony.  The evidence showed that the threats to the witness were made by individuals aligned with the defendant, but no direct link was shown to the defendant.  Judge Rivera, writing for the majority, found no reasonable inference that defendant engineered the threats, while the dissent, written by Judge Pigott, found that readily inferable.

 

CAL observes:   While multiple liability for the single shooting would certainly not be appropriate, we wonder whether that is more of a sentencing matter (i.e. mandated concurrent sentences), then so obviously a defect in the verdict.  The majority does not persuasively explain why a defendant could not harbor different mens reas regarding the different victims – an intent to kill the intended target while simultaneously being indifferent to the welfare of  innocent bystanders.  Either verdict with these facts would have been legally sufficient, but apparently both verdicts could not be sustained.  Regardless, this adds another wrinkle to the Court’s complex depraved indifferent jurisprudence.  Notably, the scant argument by counsel at trial was found sufficient to preserve the issue, further demonstrating the Court’s recent antipathy to a narrow view of preservation.

 

As to the sufficiency of the evidence at the Sirois hearing, we have to agree with the dissent that the majority’s decision seemingly alters the standard for establishing the required linkage to the defendant at least as to how the lower courts had been interpreting the Court’s previous rulings.  Given the centrality of the evidence – an eyewitness’s account of the shooting – and the significant constitutional right at issue – the right to confront and question that eyewitness – the majority’s conclusion that a direct linkage must be established is not inappropriate.  Even evidence that the defendant told someone about the witness is not enough because “that alone does not constitute witness tampering or coercive behavior.”  The People now have to establish that the defendant orchestrated or planned (or, at a minimum, “knowingly acquiesce[d]” to) the threats to be made on his behalf with something more “than conjecture.”  Speculative inferences resting solely on a defendant’s association with the individual(s) making the threat will no longer be enough.