The Advocate
Richard Blassberg

State Legislature Must End Enigma And Injustice Of “Depraved Indifference Murder”

Exactly forty years ago New York State Legislators, in their infinite collective wisdom, passed, and Governor Nelson Rockefeller signed into law, the Depraved Indifference Murder Statute, and thus was born one of the
most misunderstood and abused devices in the State’s criminal code arsenal.

Sometimes referred to as Depraved Mind Murder, an alias that only tends to invite further confusion, the statute, in effect, was an attempt to establish a homicide that would carry a penalty as severe as Second Degree
Murder, without the element of intent. Lawmakers were attempting to deal with those reckless behaviors, that were, in fact, so reckless as to “evince a depraved indifference” to whether someone, anyone, might live or die, as a consequence of the perpetrator’s conduct. The operative word was ‘indifference’ as distinguished from intent, as in Intentional Murder. Perhaps legislators were responding to a public outcry over individuals whose reckless, but unintentional, acts of Manslaughter had resulted in sentences of five years, or fewer.

Unfortunately, few people really understood the defining aspect of the notion of indifference. Many, both in, and out, of the courts, especially under the alternate title Depraved Mind Murder, came to believe that the notion of depravity attached to any murder. And, therein lay the potential for what ultimately became massive abuse of the statute by unethical and manipulative prosecutors.

Over time it came to be used more and more frequently as a safety net, or backstop, for self-promoting politically motivated District Attorneys, who would charge an accused both with Intentional, and Depraved Indifference Murder.

That practice, only recently frowned upon in appellate decisions, was essentially a statement by prosecutors that either they really didn’t have a strong, provable, theory to explain why, and by whom, someone had been
murdered, or they were not willing to invest the time and effort needed to develop one. Either way, unscrupulous prosecutors, focused merely on winning, frequently got juries who were unconvinced, or unwilling to convict
a defendant of Intentional Murder, to “compromise” by finding him guilty of Depraved Indifference Murder. Little did such juries realize that they had been duped, or that the sentence for Depraved was identical to Intentional Murder.

It took 37 years, until pressure from one State Court of Appeals Judge, now retired, Judge Rosenblatt, began to bring about a closer examination and reassertion of the statute’s elements and definition, as case after case
began piling up with greater frequency in the Appellate Division, ultimately filtering up to the high court. In March of 2004, Gonzalez, a case out of Rochester, in a decision authored by Chief Judge Judith Kaye, began to set guidelines as to what constituted an ‘indifferent’ mindset.

The Defendant had shot his victim in the back, who then fell to the floor of a barbershop, whereupon he continued to fire seven more rounds into his head and back. The trial jury had acquitted the defendant of
Intentional Murder, instead preferring the compromise Depraved Indifference verdict.

The conviction was overturned by the high court. A year later in a case from Long Island’s Suffolk County, Payne a man who was convicted of Depraved Indifference Murder, but acquitted of Intentional Murder, having
gone to his neighbor’s front door, putting a shotgun to the neighbor’s midsection and blowing him away, likewise had his conviction vacated. In writing the decision, Judge Rosenblatt, in an attempt to set aside any further ambiguity, or doubt, as to the very narrow and infrequent circumstances that warranted a charge of Depraved Indifference Murder, wrote, “The more times the victim is shot, or the more times he is bludgeoned, the more intentional, and the less depraved, is the act.”

Then there was Policano, a case out of Kings County that was reversed almost two years ago by Federal District Judge John Gleeson. That case upon appeal from the District Attorney of King’s County to the Second Circuit Court of Appeals, backed up by numerous other appeals to that Court by persons convicted under the Depraved Mind Statute, caused a three-judge panel, led by Judge Calabrese, to call upon the New York Court
of Appeals for a “Certification” of the definition and applicability of Depraved Indifference Murder. With all due respect, Judge Calabrese demonstrated his own confusion by his off-handed observations from the bench.

Here, at home in Westchester, under the reign of former DA Jeanine Pirro, the statute was so o en abused, there was hardly a homicide prosecution that did not include a charge of “Depraved” no matter how obviously the fact pattern being proffered pointed to Intentional Murder. And, she had been using the device for many years.
Anthony DiSimone, falsely charged with stabbing Louis Balancio 13 times, was nevertheless convicted of Depraved Indifference Murder, having been acquitted of Intentional Murder. Police Officer Richard DiGuglielmo, sent to prison for saving his father’s life from a bat-wielding assailant, having put three bullets into the assailant’s heart at close range in an act of self-defense, was acquitted of Intentional Murder, but convicted of Depraved
Indifference Murder.

Because of the self-preserving approach of Judith Kaye and Company, in essence creating two separate Depraved Indifference Murder statutes, one before Gallagher and one after, the fact that Officer DiGuglielmo could not, under the same circumstances be charged, much less convicted of Depraved Indifference Murder today, is not availing to him, nor to scores of others similarly situated and languishing in state prison because Kaye and her gang would not permit retroactivity, as it would have raised the issue of why that Court had permitted such abuse of the statute for nearly four decades.

A few years ago a middle-aged County bus driver was charged both with Intentional and Depraved for allegedly having strangled his elderly aunt with his bare hands. The Judge, Mary Smith, hearing the case, was persuaded to drop the Depraved charge when then-recent case law was brought to her attention. A man falsely convicted
of a double homicide that was actually a Murder/Suicide, was also charged with Depraved Indifference Murder, as well as First and Second Degree Intentional Murder, all under DA Jeanine Pirro.

Most recently, here in Westchester, the Anthony Burton homicide case, clearly a textbook definition Depraved Indifference Murder, in which the shooter admitted to knowing that there were many people standing on the
sidewalk when he mindlessly red six bullets from the window of a moving car in their direction, was nevertheless acquitted by a jury because one of the bullets struck a sign above their heads, and Burton claimed to be shooting at the sign. In this case Depraved was not the compromise, Manslaughter was.

Viewed from any perspective the Depraved Indifference Murder Statute has been a tool of more injustice than any other criminal legislation in recent New York State history. In the name of justice, and in furtherance of
equal treatment under the law, the statute should be retired.