People v Jean

[*1] People v Jean 2006 NY Slip Op 52444(U) [14 Misc 3d 1208(A)] Decided on October 25, 2006 Supreme Court, Rockland County Kelly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2006
Supreme Court, Rockland County

The People of the State of New York

against

Darius Jean, Defendant.



01-321



Michael E. Bongiorno, Esq.

District Attorney of Rockland County

Abraham Abramovsky

Attorney for Defendant

William A. Kelly, J.

The defendant has moved, by motion dated August 9, 2006, for post-trial relief, to wit, vacating the judgment imposed by the Court. The People have filed an affirmation in opposition, and the defendant a reply affirmation.

Under indictment 2001-321, the defendant was charged with Murder in the Second Degree, Manslaughter in the First Degree, Assault in the Second Degree, Assault in the Third Degree and two counts of Endangering the Welfare of a Child arising out of the death of Kyona Frederick and an assault on Mendissa Jean.

At trial, the People established that the defendant repeatedly beat his nine year old daughter with a belt and a cord. According to the testimony, the beating continued until the victim became blind from the repeated blows. When medical personnel arrived, the defendant lied about the source of the victim's injuries and the origin of the critical medical situation. The victim died as a result of the beating.

Following the jury trial, the defendant was convicted on all counts of the indictment. Thereafter, the defendant was sentenced to twenty five years to life on the top count of the indictment. The defendant received concurrent terms of imprisonment on the other counts.

The defendant appealed, and the conviction was affirmed by the Appellate Division, Second Department. People v. Jean, 13 AD2d 466 (2nd Dep't 2004). Leave to appeal to the Court of Appeals was denied. People v. Jean, 5 NY3d 764 (2005).

The defendant now moves pursuant to Article 440 of the C.P.L. for an order vacating the judgment of the trial court based upon his claims that there was insufficient evidence to support a conviction of Murder in the Second Degree based upon a theory of depraved indifference, and that the conviction for depraved indifference murder was inconsistent with his conviction for Manslaughter in the First Degree. The defendant contends that there has been a change in the applicable decisional law since the original 440 motion and his direct appeal.

The defendant's motion is denied as it faces two procedural bars.

First, the defendant does not raise one of the seven enumerated grounds set forth in C.P.L. § 440.10(1)(a)-(h). The defendant himself "contends that the Second Department's decision is no longer good law and must be vacated." The true gravamen of the defendant's contentions is that there were inconsistent verdicts and insufficient trial evidence. Those issues are clearly matters of record raising only matters of law. Those are not grounds upon which a 440 motion may be predicated.

The claims are also procedurally barred by C.P.L. §440.10(2)(a) and (c). [*2]

C.P.L. §440.10(2)(c) provides that matters of record that could have been raised on direct appeal cannot be raised in a motion to vacate a judgment. The issues that there was insufficient evidence to support a conviction for depraved indifference murder and that the verdicts were inconsistent, although clearly matters of record, were not raised on the defendant's direct appeal. Although the issues were raised indirectly within the defendant's ineffective assistance of counsel claims, as set forth in points five and six of the defendant's appellate brief, they were never truly raised on the merits in his direct appeal. Therefore, the claims clearly fall within the mandatory bar set forth in C.P.L. §440.10(2)(c).

C.P.L. §440.10(2)(a) provides that absent a change in the applicable law, matters that were previously raised on appeal and determined on the merits may not be raised in a motion to vacate a judgment. Even if this Court were to assume that the ineffective assistance of counsel claims that were litigated and decided on direct appeal constituted a decision on the merits regarding the underlying issues, the defendant would still be procedurally barred from raising those grounds in the instant motion.

The defendant asserts that the procedural bar is not triggered because there has been a change in the applicable law. The defendant claims that the recent Court of Appeals decisions in People v. Feingold, 7 NY3d 288 (2006) and People v. Suarez, 6 NY3d 202 (2005) created a substantive change in the law that entitles the defendant to the exception to the mandatory bar contained within C.P.L. §440.10(2)(a). However, in this case, this Court finds that there has been no change in the decisional law as it applies to the facts of the instant case. Accordingly, the procedural bar of C.P.L. §440.10(2)(a) would apply.

In Suarez, supra, the Court of Appeals held that depraved indifference murder applies only to a small and finite category of cases. However, the Court explicitly included within those categories, convictions involving isolated attacks upon a single person, in which the attacker acted with the intent to injure rather that kill, and engaged in a brutal or prolonged course of conduct against a particularly vulnerable victim such as a child. People v. Suarez, 6 NY3d 202 (2005).

The Court held that the repeated beating of a child "reflect[ed] wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator's inexcusable acts." Id. Such actions clearly fall within the proper scope of depraved indifference. Id. As such, a conviction based upon the repeated beating of a child will be upheld.

Counsel's assertion that the incident in question does not fall into the category of a "brutal, prolonged and ultimately fatal course of conduct" described by the Suarez Court is baseless. Id. The facts of the case clearly describe a brutal beating. Further, the duration of the beating was so prolonged that the victim was rendered blind by blows from the belt before becoming unconscious and eventually succumbing to her injuries. Certainly the facts of this case fall squarely into the paradigm of depraved indifference murder explicitly set forth by the Suarez Court. Id.

The Court of Appeals has not ruled out a conviction for depraved indifference murder in traditional or paradigm cases. The Feingold Court held that depraved indifference murder required a specific mental state that may be proven circumstantially. People v. Feingold, 7 NY3d 288 (2006). The Feingold Court adopted the definition set forth in Suarez. "[D]epraved indifference is best understood as an utter disregard for the value of human life - - a willingness [*3]to act not because one intends harm, but because one simply doesn't care whether harm results or not." Id. See also People v. Campbell, ___ AD3d __, 2006 WL 2925306 (2nd Dep't 2006). In Feingold, the case was reversed merely because the instructions to the jury misstated the mens rea necessary. It did not restrict cases in which the defendant held the appropriate mental state.

In the instant case, the defendant caused the death of the child victim through an excessive physical beating. Such facts, are consistent with the long standing concept of depraved indifference. People v. Poplis, 30 NY2d 85 (1972). Assuming the appropriate elements are established, the statute can be applied to the defendant's conduct. See, People v. Best, 85 NY2d 826 (1995)(affirming People v. Best, 202 AD2d 1015 (4th Dep't 1994); People v. Bryce, 174 AD2d 945 (3rd Dep't 1991), aff'd 88 NY2d 124 (1996); People v. Scott, 288 AD2d 846 (4th Dep't 2001); People v. Dexheimer, 214 AD2d 898 (3rd Dep't 1995); People v. Paul, 209 AD2d 447 (2nd Dep't 1994); People v. Brammer, 189 AD2d 885 (2nd Dep't 1993); People v. Kalwasinski, 160 AD2d 732 (2nd Dep't 1990); People v. Curry, 158 AD2d 466 (2nd Dep't 1990); People v. Mettler, 147 AD2d 849 (3rd Dep't 1989); People v. Ross, 117 AD2d 684 (2nd Dep't 1986). Therefore, in cases involving the beating of child, the law has not been altered by Suarez or Feingold. A depraved indifference murder may be upheld if the proper mens rea is demonstrated. See People v. Campbell, ___ AD3d __, 2006 WL 2925306 (2nd Dep't 2006).

Further, at best, the decisions in Feingold and Suarez, clarify the intent of the legislature when they enacted and defined depraved indifference. The Feingold Court specifically defined the mens rea element necessary. "A judicial decision construing the words of a statute does not constitute the creation of a new legal principle." People v. Hill, 85 NY2d 256, 262 (1995). The Hill Court held that the case of People v. Ryan, 82 NY2d 497 (1995), which clarified the mens rea element in narcotics cases based upon weight, did not amount to a change in the law, but merely a clarification of the statutes as enacted. Id. "The construction of a statute is, rather the exercise of determining the intent of the legislature when the act was passed." Id. Therefore, it is clear that there has been no change in the law, merely a clarification of an existing statutory element.

The Hill Court held that a conviction will stand, if, at the time of trial, an element of the crime was established, even if the element is later judicially clarified or defined for the first time. In Fiore v. White, 531 U.S. 225 (2001), the United States Supreme Court held that no issue of retroactivity exists, when a state court, rather than creating a new law, simply clarifies the elements of a criminal statute under which a conviction is obtained, since "the Due Process Clause of the Fourteenth Amendment forbids a state to convict a person of a crime without proving the elements of a crime beyond a reasonable doubt. Id. at 228.

The exception to the procedural bar of C.P.L. §440.10(2)(a) is therefore not triggered.

Similarly, the law has not changed so as to effect the claim that the depraved indifference count is fatally inconsistent with the conviction of Manslaughter in the First Degree.

At the outset, it should be noted that counsel has apparently mistaken the elements underlying the defendant's manslaughter conviction. In the moving papers, counsel repeatedly states that the mens rea required for depraved indifference homicide cannot be reconciled with the mens rea element of manslaughter, namely, intent to cause serious physical injury. As within the definition of serious physical injury is the substantial risk that death will occur, the defendant opines that recent decisional law mandates that the verdicts be held to be repugnant.

However, the defendant was not convicted of Manslaughter in the First Degree as [*4]charged in Penal Law §120.20(1). Rather, the defendant was convicted of Manslaughter in the First Degree as charged in Penal Law §120.20(4) which requires only that the defendant, with intent to cause physical injury, recklessly engage in conduct which creates a grave risk of serious physical injury.

Accordingly, the authorities cited to the effect that depraved indifference cannot be reconciled with the intent to cause serious physical injury are inapposite. There is nothing in the holdings of Suarez or Feingold which suggests that the intent to cause mere physical injury is inherently inconsistent with depraved indifference. In fact, conduct reflecting "wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator's inexcusable acts," is entirely consistent with the mens rea requirements of Penal Law §120.20(4).

As stated above, the Court of Appeals has consistently held that the repeated corporal beating of a child that results in the child's death is a scenario in which a conviction of depraved indifference murder is appropriate. Implicit within such fact pattern is the intent to cause physical injury to the child. Therefore, it cannot be said that the depraved indifference murder conviction and the conviction for manslaughter were inherently inconsistent or legally infirm.

As there has been no subsequent change in the law, the defendant's claim that there were inconsistent verdicts is barred. C.P.L. §440.10(2)(a).

Even assuming arguendo that the Suarez and Feingold decisions constituted a change in the law, said change cannot be applied retroactively to this collateral proceeding brought pursuant to C.P.L. §440.10. See People v. Atkinson, 21 AD3d 145 (2nd Dep't 2005)

The decision in People v. Hill, supra involved the retroactive application of the decision in People v. Ryan, supra. Similar to the claimed change in the law created by Suarez and Feingold , the Ryan case involved the interpretation of the statutory mens rea element. Although, the Hill Court applied the holding in Ryan retroactively, it clearly limited the retroactive applications to cases "pending direct appeal" at the time of the subsequent decision. See also People v. Favor, 82 NY2d 254 (1993); People v. Pepper, 53 NY2d 213 (1981).

In this case, the decisions in Suarez and Feingold were rendered long after the defendant's request for leave to appeal to the Court of Appeals was denied Therefore, the holdings of those cases cannot be applied to the instant collateral proceeding. Those decisions may be applied retroactively to the instant case only to the extent the defendant has not exhausted his direct appeal. People v. Hill, 85 NY2d 256, 262 (1995); People v. Pepper, 53 NY2d 213 (1981).

The exception permitting "complete retroactivity," such that a change in the law may be applied retroactively to a collateral proceeding, is not triggered in this case. Complete retroactivity is appropriate only in cases involving "a complete miscarriage of justice" involving the application of "constitutional standards that go to the heart of a reliable determination of guilt or innocence."People v. Pepper, 53 NY2d 213 (1981).

In this case, the "change" in the law is not of either State or Federal Constitutional dimension. Instead, it is merely a clarification of a long existing statutory principle. Further, the change in law, even as applied to the defendant would not alter the defendant's guilt or innocence. The defendant's conduct, even after Suarez and Feingold, constitutes depraved indifference murder. Accordingly, complete retroactive application of Suarez and Feingold to this collateral proceeding is not appropriate. [*5]

Even if the Court were to reach the merits of the defendant's claims, the same results would obtain. As stated above, recent decisions have not foreclosed convictions for depraved indifference murder in cases, such as the instant case, involving the beating of a child. The facts of the instant case, when viewed in the light most favorable to the People, sufficiently establish the required mens rea, as well as the other elements. Further, as detailed above, the convictions were not inconsistent.

Accordingly the defendant's motion is denied.

This Decision shall constitute the Order of the Court.

E N T E R

Dated: New City, New York

October 25, 2006

William A. Kelly

J.S.C.

TO: