People v. Cole

85 N.Y.2d 990 (1995)

652 N.E.2d 912

629 N.Y.S.2d 166

The People of the State of New York, Respondent, v. Barbara Cole, Appellant.

Court of Appeals of the State of New York.

Argued April 27, 1995.

Decided June 7, 1995.

Edward J. Nowak, Public Defender of Monroe County, Rochester (Kathleen McDonough of counsel), for appellant.

Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

*991MEMORANDUM.

The order of the Appellate Division should be affirmed.

The trial court did not err in including on the verdict *992 sheet a direction regarding the order in which the submitted charges should be considered. This direction implemented CPL 310.20, which authorizes the court to give the jury a verdict sheet containing "the offenses submitted to the jury * * * and the possible verdicts thereon." (Emphasis added.) The problem presented by this case is distinguishable from that presented in People v Sotomayer (79 N.Y.2d 1029). The verdict sheet in Sotomayer contained an unauthorized instruction regarding the effect of the justification defense as well as a direction on the order in which the charges should be considered. That combination "created a risk that the jury's deliberative process would be `unfairly skewed'" (id., at 1030, quoting People v Taylor, 76 N.Y.2d 873, 874).

We also reject defendant's contention that Penal Law § 125.25 (4), the statute under which she was convicted, is unconstitutionally vague. This Court held in People v Poplis (30 N.Y.2d 85, 88) that "conduct with `depraved indifference' to `human life' * * * is the kind [of conduct] which has been rather well understood at common law." In fact, we stated in Poplis that brutality toward a child, such as the conduct with which defendant was charged, "fits within the accepted understanding of the kind of recklessness involving `a depraved indifference to human life'" (id., at 88). Contrary to defendant's argument, our decision in People v Register (60 N.Y.2d 270, cert denied 466 US 953) did not unsettle this well-established common-law understanding of the "depraved indifference" element. Rather, it merely clarified that that element is an objective aggravating circumstance rather than a part of the crime's mens rea.

Similarly, the fact that the statute encompasses conduct "which creates a grave risk of serious physical injury or death" (emphasis supplied) does not render the statute unconstitutionally vague, since the type and level of risks to be avoided by the actor are specifically delineated (see, e.g., People v Gomez, 65 N.Y.2d 9). Finally, the differential treatment of those who intentionally set out to injure but cause death (see, Penal Law § 125.20 [1]) and those who recklessly cause death while acting under "circumstances evincing a depraved indifference to human life" does not violate any substantive due process or equal protection rights. The Legislature could rationally conclude that the existence of circumstances evincing "depraved indifference" is an aggravating factor warranting more serious punishment, even where the conduct was accompanied by a reckless rather than an intentional mental state.

*993Finally, we reject defendant's suggestion that her conviction should be reversed because of a claimed exclusion from the pretrial Sandoval hearing (see, People v Dokes, 79 N.Y.2d 656), since her claim is lacking in substantive merit.

Order affirmed in a memorandum.