On June 14, 2004, night club owner Neville Wells struck with his vehicle
and and killed 37-year-old Judith Gubernikoff on Manhattan’s Lower
East Side. A grand jury charged him with one count of murder in the second
degree and assault in the first degree (both under depraved indifference
theories), and one count each of vehicular manslaughter in the second
degree, vehicular assault in the second degree, and assault in the second degree.
The defendant “benched” the case and a trial was held without
a jury before the Hon. Richard Carruthers beginning on May 3, 2005. According
to the trial transcript, Wells blew through a red light and hit the vehicle
in which Ms. Gubernikoff and her father were riding. Eyewitnesses stated
that Wells was driving very fast at the time of the accident, completely
disregarded the semaphore in the intersection, and was completely incoherent
immediately after the accident. In fact, Wells’ blood alcohol content
at the time he was tested shortly after the accident was between .25%
and .27%, which is more than three times the legal limit.
After trial, Wells was convicted of Murder in the Second Degree under a
“depraved indifference” theory and sentenced by the judge
to concurrent indeterminate prison terms of from seventeen years to life.
Wells appealed his conviction directly to the Supreme Court, Appellate
Division, First Department, arguing that “that the evidence [was]
insufficient to sustain conviction of murder in the second degree and
assault in the second degree because it failed to establish that his conduct
was so morally deficient and devoid of concern for life as to warrant
exposing him to the same criminal liability that the law imposes for intentional
People v. Wells, 53 A.D. 3d 181 (1st Dep’t 2008). Additionally, before his appeal was decided in the intermediate appellate
court, New York’s highest court, the Court of Appeals, decided People
v. Feingold, 7 N.Y.3d 288 (2006), which overturned People v. Register
60 N.Y.2d 270 (1983). After Feingold, the standard for depraved indifference
crimes to require courts to look at the mental state from a subjective
point of view, finding guilty only where the particular defendant demonstrates
“‘a willingness to act not because [he] intends harm, but
because [he] simply doesn’t care whether grievous harm results or
not . . . . A defendant must possess an “utter disregard for the
value of human life . . . embodied in conduct that is so wanton, so deficient
in a moral sense of concern, and so blameworthy as to render the actor
as culpable as one’ who intends the result of his acts.” Wells
v. Perez, 10 Civ. 1107 (S.D.N.Y. 2010) (Report and Recommendation of Francis IV, J.).
Wells’ conviction was upheld by the First Department, in a 2008 Opinion
authored by Justice Tom. In
Wells, the Appellate Division ruled that since the crime took place and the
trial was held in the
Register era, New York’s standard of proof necessary to support a conviction
of depraved indifference murder had been met. The court set forth the
standard it applied as follows:
Depraved indifference murder is committed when, "[u]nder circumstances
evincing a depraved indifference to human life," a person "recklessly
engages in conduct which creates a grave risk of death to another person,
and thereby causes the death of another person" (Penal Law §125.25).
Similarly, assault in the first degree under a depraved indifference theory
is committed when, "[u]nder circumstances evincing a depraved indifference
to human life," a person "recklessly engages in conduct which
creates a grave risk of death to another person, and thereby causes serious
physical injury to another person" (Penal Law §120.10). A
person acts recklessly "when he is aware of and consciously disregards
a substantial and unjustifiable risk" (Penal Law §15.05).
The law in effect at the time of defendant’s trial did not evaluate
depraved indifference under the subjective mens rea standard announced
in Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 , supra,
but instead referred to an objective standard reflected by the "factual
setting in which the risk creating conduct must occur" (see Register,
60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704). Prior to Feingold,
our jurisprudence had not progressed to the point where recklessness had
been abandoned in favor of the mens rea of depraved indifference to human
life, and then only by a closely divided Court of Appeals, whose dissenters
saw no reason to overrule Register (see id. at 300, 469 N.Y.S.2d 599,
457 N.E.2d 704 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting],
305 [Graffeo, J., dissenting]).
. . .
Under Register, depraved indifference murder requires that a defendant’s
act be imminently dangerous, present a very high risk of death to others
and be committed under circumstances that evince a wanton indifference
to human life or a depravity of mind (see Register, 60 N.Y.2d at 274,
469 N.Y.S.2d 599, 457 N.E.2d 704). The requirement of depraved indifference
refers neither to the mens rea nor to the actus reus; rather, it refers
to "the factual setting in which the risk creating conduct must occur"
(id. at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).
The court listed several factors which led to its conclusion that the
Register standard had, in fact, been met in this case:
- Defendant chose to drive while heavily intoxicated;
- Defendant was traveling 50-60 mph on busy NYC streets;
- In addition to the speed, defendant drove “dangerously” as
evidenced by his striking a parked car and nearly striking another before
the fatal accident;
- Although “heavily intoxicated,” defendant still had the presence
of mind to attempt to flee the scene; and
- Defendant had previously attended a class aimed at preventing drunk driving
Based on the application of these facts to the
Register standard (“[t]he act of driving a vehicle while in a highly intoxicated
state, at high speed, on city streets, ignoring traffic signals and failing
to stop after striking a parked vehicle demonstrates reckless conduct
that created a grave risk of death to others so as to constitute depraved
indifference to human life”), the First Department upheld the conviction.
Six days later, however, the Court of Appeals, in
People v. Jean-Baptiste, 11 N.Y.3d 539 (2008), retroactively applied
Feingold to all cases pending on direct appeal “in which the defendant has
adequately challenged the sufficiency of the proof as to his depraved
indifference murder conviction.” Id. at 542.
Defendant then petitioned the United States District Court for the Southern
District of New York for a writ of habeas corpus.
Wells v. Perez, 10 Civ. 1107 (DLC) (JCF) (S.D.N.Y. 2010). The case landed in front of
the Honorable Denise L. Cote and Magistrate Judge James C. Francis IV.
In his petition, arguing that his state court conviction was obtained
in violation of clearly established Federal law.
In a letter recommendation report to Judge Cole, Magistrate Judge Francis
wrote that under recent New York law, “a defendant’s decision
to drink, made hours in advance of a later accident, is insufficient to
uphold a depraved indifference conviction.” Later, Judge Francis
wrote, “[t]herefore, the First Department’s holding in
Wells, which upheld the petitioner’s convictions for depraved indifference
crimes based on a finding of culpable mens rea at the moment he chose
to begin drinking, is no longer good law.” After a lengthy discussion
of the various procedural issues that mark the case, Judge Francis noted
that the First Department reached the wrong result on the merits, stating,
in his letter to Judge Cote that “no rational trier of fact could
have convicted the petitioner of second degree murder or first degree
assault under depraved indifference theories based on the evidence at
trial.” Francis wrote that the evidence submitted that Wells had
attended an alcohol rehabilitation training course was only relevant to
his state of mind at the time he began drinking which under the properly
applied Court of Appeals decisions, “is insufficient to support
the conclusion that, prior to the acidence, he possessed a culpable state
of mind tantamount to intent to harm.” The fact of intoxication
to an extreme degree actually negated his intent: “Mr. Wells’
level of intoxication . . . would have made it extremely difficult, if
not impossible, for him to comprehend the nature and consequences of his
actions such that he could be found to have evinced a conscious, callous
disregard for those consequences; in any case, proof that Mr. Wells possessed
such a culpable mindset was not presented at trial.” Based on its
analysis of these factors, among others, Judge Francis recommended that
the petition be granted, but also held that a retrial of Wells would not
violate double jeopardy standards.
If you have been charged with a serious offense, you need experienced counsel with knowledge of New York statutory and decisional law.