People v. Bartow

Appeal by the defendant from a judgment of the Supreme [421] Court, Queens County (McCann, J.), rendered May 15, 2001, convicting him of murder in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hanophy, J.), of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The defendant was charged on a theory of accessorial liability with, inter aha, intentional murder, depraved indifference murder, and depraved indifference assault. The evidence, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), established that the defendant hired his girlfriend’s brother to kill his wife, and that on November 16, 1996, the defendant opened the door to his apartment and allowed a man to enter who then shot the defendant’s wife in the head from less than one inch away, and slashed the throat of the defendant’s daughter from ear to ear three times with a knife. At the close of the People’s case, the defendant moved to dismiss the charges of depraved indifference murder (Penal Law § 125.25 [2]), and depraved indifference assault (Penal Law § 120.10 [3]), arguing that the evidence only supported a finding that the murder of the defendant’s wife and assault of his daughter were intentional acts. The Supreme Court denied the motion. The defendant Was acquitted of intentional murder, and convicted of depraved indifference murder and depraved indifference assault. For accomplice liability to attach, the accomplice must have intentionally aided the principal in the commission of the crime, and shared the principal’s culpable mental state (see People v Hafeez, 100 NY2d 253 [2003]; Penal Law § 20.00). Consistent with this, the jury was charged that the defendant could be found guilty of the depraved indifference murder of his wife only if it found that the defendant, “under circumstances evincing a depraved indifference to human life recklessly engaged in conduct which created a grave risk of death to [his wife] by firing a loaded pistol or revolver at and in the direction of [his wife] thereby shooting [her] and causing her death.” The jury was charged that the defendant could be found guilty of the depraved indifference assault of his daughter only if it found that the defendant, “under circumstances evincing a depraved indifference to human life recklessly engaged in conduct which [422] created a grave risk of death to [his daughter] by cutting her throat and thereby causing serious physical injury to [her].” However, no reasonable view of the evidence would support a conclusion that the shooting of the wife or the assault of the daughter were other than intentional acts. Thus, the Supreme Court should have granted the defendant’s motion to dismiss the counts of depraved indifference murder and depraved indifference assault, and the defendant’s conviction on those counts may not stand (see Hafeez, supra; People v Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Gallagher, 69 NY2d 525 [1987]; cf. People v Atkinson, 21 AD3d 145 [2005] ). We disagree with our dissenting colleagues that there is any basis to affirm the conviction on the depraved indifference assault count. That count was charged and tried on the same theory of accomplice liability as the depraved indifference murder count and suffers from the same infirmity. Under the law as it exists today, therefore, we are constrained to reverse the judgment and dismiss the indictment. In light of our determination, it is unnecessary to reach the defendant’s remaining contentions. Ritter, Luciano and Rivera, JJ., concur.