Judicial Reports:

INTENT MATTERS
By Mark Thompson
markthomp@yahoo.com
Posted 07-02-08

The Appellate Division has reversed two more convictions handed down by New York City trial judges for depraved indifference murder. They are the latest in a stream of reversals of convictions flowing from a series of Court of Appeals decisions, issued between 2004 and 2006. The rulings narrowed the circumstances under which a defendant can be charged with second-degree depraved indifference murder, a count often used by prosecutors because they can win a hefty sentence against a defendant without proving that he or she intended to kill. 

With a flurry of five reversals last year, the Appellate Divisions covering New York City appeared to be finished with the work of cleaning up cases that went to trial while the state’s high court was in the process of reformulating the law. In the most recent rulings, appellate panels took care of a couple of stragglers.

One of last week’s reversals was handed down in a case that went to trial before Queens County Justice Sheri S. Roman in 2002. Angel Solano faced a charge of depraved indifference murder for a crime in which he shot his victim in the head from about a foot away. As the Court of Appeals would subsequently make clear, depraved indifference murder is not an appropriate charge in most one-on-one shootings because the shooter almost always exhibits a "manifest intent to kill." That was certainly true in Solano’s case because he shot the victim at nearly point blank range, the appellate panel said.

Roman, a former Bronx County prosecutor, therefore shouldn’t have let prosecutors get away with winning a conviction the easy way, without establishing intent. “There was no valid line of reasoning and permissible inferences that could have led a rational jury to conclude, as the jury did, that the killing was reckless rather than intentional,” explained a unanimous appellate panel, in reversing Solano’s murder conviction. People v. Solano (June 24)

In a second ruling handed down the same day, New York County Justice William A. Wetzel was reversed for the instructions he gave to jurors about depraved indifference murder in a trial held in May 2006. In that case, Jovanni Florestal was charged with unintentional but depraved murder for the death of her baby from malnutrition and repeated beatings. Before deliberations got underway, Wetzel instructed jurors to consider the element of depraved indifference based on the objective circumstances surrounding the defendant's conduct instead of based on her mental state.

At the time, the Court of Appeals had begun to steer the law of depraved indifference murder in a new direction. In the first key ruling in 2004, the court declared that depraved indifference should no longer be defined exclusively by reference to the magnitude of the risk presented by the defendant's conduct. But at the time of Florestal’s trial, the court had not yet declared outright that depraved indifference was in fact a “culpable mental state.” The Court of Appeals would take that step two months after Florestal went to trial and, as it happens, a month before Wetzel sentenced her to 25 years to life in prison in August 2006.

Wetzel was swimming against the tide when he instructed the jurors who were deciding Florestal’s fate not to consider her mental state. But the Appellate Division, half-heartedly giving Wetzel the benefit of the doubt, observed that the “the law was, at least arguably, unclear at the time of the trial.”

It was a reversible error anyway, which did more than mislead the jurors during deliberations. The error also “infected [Wetzel’s] refusal to allow [Florestal's] expert witness to render an opinion whether [her] state of mind was that of ‘depraved indifference’ to the plight of her child,” said the unanimous appellate panel, in reversing Florestal’s conviction and remanding the case for a new trial. People v. Florestal (June 24)

OTHER NOTABLE REVERSALS

NEW YORK COUNTY

CIVIL PROCEDURE: Judicial Hearing Officer Ira Gammerman, a member of the Manhattan Supreme Court's Commercial Part, slapped a defendant named Roman Tsal-Tsalko with an undeservedly harsh sanction for a minor lapse in complying with unwritten discovery orders, the Appellate Division said. Gammerman dismissed, on his own motion, Tsal-Tsalko’s answer and entered a judgment in favor of the plaintiff, Daniel Sidelev, because of Tsal-Tslako’s delays in turning over some of the requested information. In fact, according to a unanimous appellate panel, Tsal-Tsalko had “substantially complied” with the discovery requests, and as for the delay in turning over some of the information, he had a good excuse for that. So Gammerman had no good reason to impose such a harsh sanction. Worse yet, Gammerman never issued a written discovery order nor did he have a court reporter make a record of his directions, nor did he bother to warn Tsal-Tsalko that dismissal of his answer was imminent, the unanimous appellate panel said, vacating Gammerman’s dismissal order and reinstating the complaint. Sidelev v. Tsal-Tsalko (June 24)

WEAPONS: Justice Jane S. Solomon was reversed for her willingness to interpret New York’s gun control laws with greater laxity than the Appellate Division was willing to allow. In the case that came before Solomon, the police commissioner had revoked David Beach’s residence pistol license because he had carried the gun with him to Las Vegas. Since he was licensed to keep the gun in his New York home and also had a right to carry it to Nevada, he did nothing wrong, Solomon reasoned, in granting Beach’s motion to annul the license revocation. But as the Appellate Division noted, in reinstating the revocation, in order to get the gun from his home to Nevada, he had to carry it to the airport, and he was not licensed to do that. Matter of Beach v. Kelly (June 26)

RICHMOND COUNTY

TORT: Justice Judith McMahon was reversed for allowing Josephine Amplo to proceed with a suit for a sidewalk slip and fall that, according to the Appellate Division, could not be blamed on negligence by any of the three adjacent property owners whom Amplo named as defendants in her suit. She claimed that she tripped on a groove in the sidewalk that was covered with slush. But the slush was from a storm that was still underway when Amplo took her tumble, leaving the defendants with no time to notice, much less fix, the hazard, the appellate panel said. As for the “groove” in the sidewalk, it was an expansion joint purposely built into the pavement to prevent the ramp from cracking, not a defect resulting from anyone’s negligence. McMahon therefore should have summarily dismissed Amplo’s suit, the appellate panel concluded. Amplo v. Milden Ave. Realty Assoc. (June 24)

TORT: Justice McMahon was reversed in another case for dismissing as time barred a suit against a paratransit provider whose driver was involved in a traffic accident with the plaintiff, Patrick Sullivan. McMahon erred in concluding that the paratransit provider is a public agency subject to a statute of limitations of one year and 90 days. The paratransit provider leases vehicles that are owned by a public agency, the New York City Transit Authority, but it is not a subsidiary of the transit authority, said the Appellate Division; it is therefore not covered by the shorter statute of limitations that applies to public agencies, and Sullivan’s suit should not, on that basis, have been dismissed. Sullivan v. Atlantic Paratransit of N.Y.C., Inc. (June 26)

FAMILY: Judge Catherine DiDomenico erred in jumping to the conclusion that a father’s admission to a caseworker that he had used drugs was sufficient evidence, by itself, to support a finding of child neglect. The Appellate Division wanted to know more about the father’s drug use, including its duration and frequency, the types of drugs involved, and whether he was ever under the influence of drugs while in the presence of the child. Without crucial details of that nature, the mere fact that he has used drugs yet was not enrolled in a drug treatment program was insufficient to establish a prima facie case of child neglect, the Appellate Division said, reversing DiDomenico’s finding of neglect. Matter of Anastasia G. v. Michael G. (June 24)


Posted by Ennis on July 2, 2008 12:08 AM to Judicial Reports