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 conduct.” See 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.