A person is guilty of murder in the second degree when:

A person is guilty of manslaughter in the second degree when:

Manslaughter in the second degree is a class C felony.

A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.

Reckless endangerment in the first degree is a class D felony.

263*263 Jillian S. Harrington, Monroe Township, New Jersey, for appellant in the first above-entitled action.

264*264 Kathleen M. Rice, District Attorney, Mineola (Maureen McCormick, Tammy J. Smiley and Judith R. Sternberg of counsel), for respondent in the first above-entitled action.

265*265 Lynn W.L. Fahey, Appellate Advocates, New York City (Erica Horwitz of counsel), for appellant in the second above-entitled action.

Daniel M. Donovan, Jr., District Attorney, Staten Island (Anne Grady and Morrie I. Kleinbart of counsel), for respondent in the second above-entitled action.

Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), for appellant in the third above-entitled action.

266*266 Kathleen M. Rice, District Attorney, Mineola (Maureen McCormick, Tammy J. Smiley and Jason R. Richards of counsel), for respondent in the third above-entitled action.

Frank A. Sedita, III, District Attorney, Buffalo, and Anthony Girese, District Attorney, Bronx (Courtney Robbins and Joseph McCormack of counsel), for District Attorneys Association of the State of New York, amicus curiae in the first, second and third above-entitled actions.

Judges GRAFFEO, PIGOTT, RIVERA and ABDUS-SALAAM concur with Chief Judge LIPPMAN; Judge SMITH dissents in an opinion in which Judge READ concurs in a separate opinion.

267*267 OPINION OF THE COURT

Chief Judge LIPPMAN.

Defendants in these three appeals challenge their convictions of depraved indifference murder. Each defendant drove in an outrageously reckless manner while intoxicated by alcohol or drugs and caused the death of at least one other person. Defendants maintain that the evidence was not legally sufficient to support their convictions—specifically, that there was insufficient proof that they had the requisite mental state of depraved indifference. Although intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between, we find that the evidence in each of these unusually egregious cases was legally sufficient to support the convictions.

People v Heidgen

At about 4:30 p.m. on July 1, 2005, defendant Martin Heidgen met a friend for drinks at a Manhattan bar. When the friend left about three hours later, defendant, who remained at the bar, had already consumed six beers. Later that night, between 11:00 p.m. and midnight, defendant drove to a party at a friend's house in Merrick. Defendant proceeded to consume several additional alcoholic beverages at the party. Although he appeared to be intoxicated or "buzzed," defendant was not unsteady on his feet or slurring his words. Defendant left the party after about an hour and a half, without saying goodbye. It was not only well-known among their group of friends that there would 268*268 always be a place to stay or a designated driver available if necessary, but one friend testified that she had had a specific conversation with defendant to that effect about a week prior to the party.

Just before 2:00 a.m., witnesses saw defendant driving north on the southbound side of the Meadowbrook Parkway. One witness testified that she pulled over when she saw defendant's headlights coming at her and honked her horn three times, but that defendant did not deviate from the center lane or reduce his speed, which she estimated at about 70 to 75 miles per hour. A second witness testified that, when he saw defendant's pickup truck approaching, the witness drifted slightly to the left and that "it appeared as if [defendant's] car was drifting with me." After defendant passed him, the witness looked in his rearview mirror and observed that defendant's brake lights were not illuminated. The witness estimated defendant's speed at between 70 and 80 miles per hour.

A third witness testified that he had been driving his motorcycle on the northbound side of the Meadowbrook Parkway, when he saw defendant's vehicle on the wrong side of the road. He testified that he rode next to defendant—separated by the guardrail—and that they were traveling at about 70 miles per hour. Despite the witness's "loud" motorcycle at his side, defendant only looked straight ahead and appeared "very intent at driving." The witness lost sight of defendant's car when the guardrail was replaced by a median of trees and bushes.

After traveling about 2½ miles on the wrong side of the parkway, past multiple "wrong way" signs and the backs of several other road signs, defendant crashed head-on into a limousine that was bringing several family members home from a wedding. Both the driver, Stanley Rabinowitz, and seven-year-old passenger, Katie Flynn, were killed on impact. Several other family members sustained grievous physical injuries. One of the passengers in the limousine, Christopher Tangney, a former Nassau County Police Officer, testified to what he had observed through the vehicle's windshield. Tangney testified that they saw defendant coming at them, but that Rabinowitz was unable to move out of the left lane because there was another car next to them. Tangney estimated defendant's speed at about 65 miles per hour and observed that, when the limousine attempted to move to the right, defendant "seemed to follow us, the headlights."

269*269 Reverend Steed Davidson testified that he had been driving in the center lane at about 55 miles per hour and that the limousine had just finished passing him on the left when the crash occurred. Davidson testified that he saw defendant's headlights coming toward him, but was unable to react before impact. Davidson did not see defendant's vehicle swerve or slow down before the crash.

Defendant was arrested at the scene^[1] and transported to the hospital. He smelled of alcohol and was generally characterized as either unresponsive or incoherent by police officers and medical professionals. At the request of the State Police, the emergency room nurse obtained a blood sample from defendant which revealed a blood alcohol concentration of .28%.^[2]

Dr. Closson, a forensic toxicologist, testified for the prosecution that defendant's blood alcohol concentration meant that he would have had difficulty processing stimuli in the environment, that his cognitive abilities would have been impeded and that he could have had blurry, "tunnel vision," which would have reduced his peripheral vision. The blood alcohol concentration could have contributed to the disregard of substantial, or even grave, risks. Closson testified that a "divided attention activity," such as driving, would have presented difficulties because persons under the influence of alcohol are more likely to focus on one task than on performing several activities simultaneously. In addition, defendant's reaction time would have been decreased—although it would have decreased as a matter of seconds, rather than minutes, and would not have caused him to fail to perceive or react to his surroundings at all. Dr. Closson testified that the .28% reading meant that defendant had approximately 14 drinks in his system at the time of the test, but gave a "conservative estimate" that defendant had consumed at least 20 drinks in all.

270*270 Defendant was advised that he was under arrest at about 12:30 p.m. on July 2, although at that time he was not told that two people had been killed in the crash. Defendant told police that he had gotten into an argument over the telephone with his ex-girlfriend in Arkansas and that he went into "self-destruct mode." He related that he was "very upset and depressed" and had consumed a fifth of "Old Parr Scotch" before going out and driving around. Defendant complained that he had financial problems and that everything was going wrong since he had moved to New York from Arkansas. He also told the officers that his grandmother had recently passed away. In response to multiple police inquiries on the subject, defendant denied that he had been trying to hurt himself.

A letter that defendant wrote to one of his friends from prison explained that the statements he had made to the police were false. He noted that he had not spoken with his ex-girlfriend at all that night and that he did not have any financial problems. In addition, he pointed out that portions of his statement were lines from the movies Ocean's Eleven and Pulp Fiction. He further stated that the empty bottle of "Old Parr Scotch" in his apartment had been empty for months prior to the accident. Defendant indicated that he constructed this story in order to protect the hosts of the party and to portray himself as a person "worthy of leniency."

The defense retained an engineer, Steven Schneider, who was qualified as an accident reconstruction expert.^[3] Schneider calculated that the limousine had been traveling at 49 miles per hour on impact. He further estimated that defendant's vehicle had been traveling somewhere between 27 and 38 miles per hour. The People did not call an expert and instead relied upon the testimony of lay eyewitnesses regarding defendant's speed.

The jury was instructed that, when determining whether defendant had acted with depraved indifference to human life, it should consider whether he was too intoxicated to be able to form the requisite mental state. Defendant was convicted after trial of two counts of murder in the second degree, three counts 271*271 of assault in the first degree and two counts of operating a vehicle while under the influence of alcohol. The court denied defendant's posttrial motion to set aside the verdict, rejecting defendant's arguments asserting juror misconduct and that the People failed to prove beyond a reasonable doubt that he had the state of mind of depraved indifference to human life.

The Appellate Division affirmed, finding the evidence legally sufficient to support the conviction (87 AD3d 1016 [2d Dept 2011]). The Court also determined that the allegations of juror misconduct in defendant's CPL 330.30 motion were properly rejected. One Justice dissented in part and would have modified to reduce the convictions of murder in the second degree to manslaughter in the second degree and the convictions of assault in the first degree to assault in the second degree. The dissent would have found the evidence legally insufficient to support a finding of depraved indifference to human life, since the People failed to establish that defendant was aware of, and indifferent to, the grave risks presented by his conduct. The dissent would have found defendant "too inebriated to form such a mens rea" (87 AD3d at 1034). The dissenting Justice granted defendant leave to appeal to this Court (17 NY3d 957 [2011]) and we now affirm.

People v Taylor

On October 18, 2006, defendant Taliyah Taylor spent most of the evening attempting to record a song she had written in honor of her late father, who had died when she was a child. Unable to recall the last verse of the song, she took Ecstasy at about 6:30 p.m. in order to help her focus and to feel closer to her father. She also drank one beer and smoked marijuana. A few hours later, defendant left the recording session, taking her young nephew with her "to get the evil off of [him]." She brought him to her mother's house, where she removed his clothing. Taylor also removed her own clothing to show that she had nothing to hide and should be accepted as she was. Defendant ran outside, still naked, attempting "to get away from everything, all the problems, all the hate, all the greed." Over her girlfriend's vigorous objections, Taylor then took the friend's car, later explaining that she wanted to drive "as fast as the car would take her."

At about 10:45 p.m., defendant drove on Forest Avenue in Staten Island (a local road with a posted speed limit of 35 miles per hour) at speeds between 80 and 90 miles per hour, without 272*272 headlights, on the wrong side of the road, and struck a pedestrian, Larry Simon, who was crossing the street. Defendant, who was wearing her seat belt, did not slow down, sound her horn or make any attempt to swerve. Simon was killed instantly, sustaining injuries that were more consistent with having been hit by a subway train than by a car. Without slowing, defendant continued driving in the lane for oncoming traffic, ran a red light and struck a vehicle that was stopped at that light, injuring the vehicle's occupants. Defendant's car then flipped over, before coming to rest in a parking lot.

Bystanders helped defendant from the vehicle and she began jumping up and down, chanting "money, power, respect." When the police arrived at the scene, defendant tried to drive away in an unattended squad car, but was stopped and arrested. When asked for her pedigree information, defendant gave her girlfriend's name instead of her own on three separate occasions. The emergency medical personnel generally characterized defendant as alert and coherent, though under the influence of drugs or alcohol. A blood test performed after midnight showed the presence of methylenedioxyamphetamine (MDA)^[4] in a concentration that indicated defendant was still actively under the influence of the drug.

The forensic toxicologist testified that MDA is a central nervous system stimulant that, at higher dosages, can have hallucinogenic effects. He observed that individuals under the influence of MDA often exhibit enhanced risk-taking behavior and that they would have difficulty with a multi-task activity such as operating a motor vehicle—they might either switch tasks too quickly or focus on one task to the exclusion of others. Although cannabinoids were detected in an initial screening test, their presence was not confirmed by any followup testing. However, the toxicologist testified that cannabinoids are also hallucinogenic compounds and could have an additive or synergistic effect if taken with MDA.

One of the police officers testified that defendant told him that, "as she was driving, things were coming at her fast and she made the side to side motion also like she is avoiding things." When asked if she remembered hitting the pedestrian, she told the officer that "she saw him and then he was gone." 273*273 She also related "that it was like she was in a movie, but she knew she wasn't in a movie."

The court denied defense counsel's motion to dismiss the depraved indifference murder charge, rejecting the argument that the People did not establish the necessary state of mind. The jury was instructed that it could consider whether defendant was too intoxicated to be capable of forming the mental state of depraved indifference. Defendant was convicted of murder in the second degree, reckless endangerment in the first degree and operating a motor vehicle while under the influence.

The Appellate Division affirmed, finding legally sufficient evidence to support the conviction (98 AD3d 593 [2d Dept 2012]). A Judge of this Court granted defendant leave to appeal (20 NY3d 1065 [2013]) and we now affirm.

People v McPherson

At about 3:15 a.m. on October 19, 2007, defendant Franklin McPherson left a nightclub with his cousin, his girlfriend and one of her friends, and began arguing with his girlfriend in the parking lot. He was apparently upset that he had lost something and was seen searching through the trunk of his car. Witnesses then heard several gunshots and defendant drove away with his cousin in the car. Police later found five 9 millimeter shell casings in the parking lot.

At 3:30 a.m., defendant's car was seen driving west in the eastbound lanes of the Southern State Parkway at speeds of about 70 to 75 miles per hour. He traveled about five miles in the wrong direction, passing eight "wrong way" signs and the backs of 21 large signs that could only be read by eastbound drivers. A construction worker in the right-hand, eastbound lane, testified that when he saw defendant driving toward him, he blew his Mack truck's air horn for three or four seconds, but defendant just kept going. Other witnesses testified that cars were veering out of defendant's way but that defendant made no attempt to brake or to avoid other vehicles.

Near exit 13, defendant crashed head-on into a Jeep without slowing down, killing the Jeep's driver, Leslie Burgess, instantly. Defendant was placed under arrest and his blood alcohol content was measured at .19%. In a subsequent inventory search of his vehicle, police found 9 millimeter ammunition in the trunk, as well as an unloaded 9 millimeter handgun in the car. The gun was later determined to be the same one that had fired the 274*274 shots in the parking lot earlier that evening. A small plastic bag containing cocaine was also found inside defendant's vehicle.

Defense counsel argued to the jury during opening and closing statements that they had to determine whether McPherson had been capable of perceiving the risk presented by his behavior and purposely ignored that risk. In addition, when discussing how to formulate an appropriate jury charge on depraved indifference, the trial court specifically raised People v Feingold (7 NY3d 288 [2006]) and asked the parties whether the holding of that case was applicable if defendant was oblivious to his surroundings by virtue of his voluntary intoxication. Defense counsel, however, failed to move to dismiss the depraved indifference murder charge on that basis. The jury was instructed that it must consider whether defendant was intoxicated to such a degree that he was incapable of forming the mental state of depraved indifference.

Defendant was convicted of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated, operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the seventh degree. The Appellate Division affirmed, finding defendant's argument that the evidence was legally insufficient to support his conviction unpreserved for review and, in any event, without merit (89 AD3d 752 [2d Dept 2011]). The Court also rejected the argument that defendant received ineffective assistance of counsel.

One Justice dissented and would have modified, in the interest of justice, by reducing the second degree murder conviction to manslaughter in the second degree. The dissent would have found that the People failed to prove that defendant was aware that he was driving the wrong way on the highway and disregarded the grave risk of death to others. The dissenting Justice granted defendant leave to appeal to this Court (19 NY3d 969 [2012]) and we now affirm.

Depraved Indifference

As we held in People v Feingold (7 NY3d 288 [2006]), depraved indifference is a culpable mental state. That mental state "is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (Feingold, 7 NY3d at 296 [internal quotation marks and 275*275 citation omitted]). Circumstantial evidence can be used to establish the necessary mens rea (see Feingold, 7 NY3d at 296).

The defendant in Feingold had been convicted of reckless endangerment in the first degree—recklessly engaging in conduct that creates a grave risk of death to others, under circumstances evincing a depraved indifference to human life. Feingold had attempted suicide by blowing out the pilot light of his stove and turning on the gas. However, a spark from the refrigerator caused an explosion, resulting in structural damage to his apartment building. Although we recognized that, viewed in the light most favorable to the People, the evidence could have supported the conclusion that defendant had the necessary mens rea, the trial judge's express finding that the defendant's state of mind did not reflect depraved indifference foreclosed such a determination in that case (see Feingold, 7 NY3d at 295).

More recently, in People v Valencia (14 NY3d 927 [2010]), we addressed a fact pattern similar to the cases at issue. After spending the evening drinking at a friend's house, the defendant drove in the wrong direction on a Long Island parkway at a high rate of speed, for about four miles. He crashed into two oncoming vehicles, causing serious physical injury to the drivers. Valencia's blood alcohol concentration was measured at.21%. We held that there was legally insufficient evidence to support the conviction for first degree (depraved indifference) assault, noting that "[t]he trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference" (14 NY3d at 927-928).

Valencia is, however, distinguishable from the present cases. There, the trial judge, as the factfinder, determined that the defendant had been "oblivious" to the risks caused by his drunk driving at the time of the offense, but nevertheless convicted him of depraved indifference assault based simply on his earlier acts of drinking to the point of extreme intoxication, despite defendant's awareness that he would be driving in that condition later that evening (see 14 NY3d at 928 [Graffeo, J., concurring]). To the contrary, in each of the instant appeals, the jury was asked to decide whether the defendant was incapable of forming the requisite mental state by reason of his or her intoxication and each jury rejected the argument that defendant's impairment rose to that level. Further, none of the instant appeals presents the question of whether the mens rea of depraved indifference must be contemporaneous with the actus reus of the offense.

276*276 In People v Prindle (16 NY3d 768 [2011]), the defendant led the police on a high speed chase after attempting to steal two snow plows and ultimately crashed into another vehicle, killing one of its occupants. We reduced the defendant's depraved indifference murder conviction to manslaughter in the second degree. Observing that the jury had been instructed, without objection, according to the pre-Feingold standard of People v Register (60 NY2d 270 [1983]), we found that the evidence was legally insufficient to support the determination that defendant had demonstrated a depraved indifference to human life (see Prindle, 16 NY3d at 771). We compared Prindle's case to People v Gomez (65 NY2d 9, 12 [1985]), where, after striking two cars, the defendant drove on the sidewalk, struck and killed one child, refused his passenger's pleas to apply the brakes, continued to accelerate and struck another child on the sidewalk. By contrast, Prindle, although plainly driving in an unsafe manner, had been actively attempting to avoid hitting other vehicles.

These cases demonstrate that cases involving a depraved indifference to human life are highly fact-specific and dependent upon the individual defendant's particular mental state—a factor that may be extremely difficult to establish. Indeed, intoxicated driving cases in general, although clearly examples of dangerous behavior, are not thought of as "quintessential" cases of depraved indifference—such as,

"firing into a crowd; driving an automobile along a crowded sidewalk at high speed; opening the lion's cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway" (People v Suarez, 6 NY3d 202, 214 [2005] [citations omitted]).

Recognizing that "it is important that law enforcement and prosecutors have the tools necessary to properly charge and convict [those] who have committed a DWI resulting in personal injury or death" (Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 345 at 8), the legislature has enacted the aggravated vehicular homicide and assault statutes (Penal Law §§ 125.14, 120.04-a), which provide for enhanced punishment of those individuals who cause death or serious physical injury while operating a motor vehicle while intoxicated, when, for example, the individual has a blood alcohol content of at least.18. These statutes, however, do not foreclose the possibility of 277*277 prosecution for depraved indifference murder where egregious circumstances warrant that charge, as they do here.

"A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citations omitted]). The reviewing court must "marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" (Danielson, 9 NY3d at 349).

When viewed in the light most favorable to the People, there was legally sufficient evidence to support Heidgen's convictions for depraved indifference murder. The jury could have determined that defendant was unhappy and self-destructive. Defendant's friends who observed him at the party thought that he was intoxicated but not so intoxicated that he was incoherent, unsteady on his feet or slurring his speech. Heidgen drove the wrong way on the highway for over two miles without reacting to other drivers coming at him, car horns, or wrong way signage. Perhaps most significantly, more than one witness testified that defendant appeared to follow, or track, the headlights of oncoming vehicles. In addition, the toxicologist testified that defendant's blood alcohol level would have caused delayed reaction time, but that it would not have rendered him incapable of reacting at all. Based on this evidence, the jury could have found that, despite defendant's intoxication, he perceived his surroundings. The jury could have reasonably concluded that defendant drove, knowing that he was on the wrong side of the road and with an appreciation of the grave risks involved in that behavior.^[5] One who engages in what amounts to a high speed game of chicken, with complete disregard for the value of the lives that are thereby endangered, is undoubtedly an individual whose culpability is the equivalent of an intentional murderer.

The evidence is likewise legally sufficient to support Taylor's conviction for depraved indifference murder. Taylor 278*278 buckled her seat belt and set out to drive as fast as she could go. She proceeded at speeds in excess of 80 miles per hour on a local road, without lights, at times on the wrong side of the street. Her statements to police revealed that she had perceived at least some of the obstacles in her path, notably the pedestrian victim prior to striking him. Taylor's behavior was obviously frenzied,^[6] but it is also clear that she was aware of her surroundings. From the above evidence, the jury could have concluded that defendant recklessly engaged in conduct that created a grave risk of death to others, with an utter disregard for whether any harm came to those she imperiled.

For the same reasons, the evidence was legally sufficient to establish that Taylor was guilty of reckless endangerment in the first degree. As defendant herself observes, there was no change in her mental state between the time she struck the pedestrian and when she hit the other vehicle. Rather, after colliding with pedestrian Simon, she proceeded at full speed.

In McPherson, the depraved indifference argument arises in the context of an ineffective assistance of counsel claim. Defendant's trial took place in 2008, approximately two years after this Court's decision in Feingold which, as noted above, conclusively established depraved indifference as a culpable mental state. Indeed, when discussing how to formulate the jury charge, the trial court specifically raised Feingold to the parties—in particular, whether the holding applied if the defendant had been oblivious to his surroundings because he was voluntarily intoxicated. Under these circumstances, even if a reasonable defense lawyer might have questioned whether a motion to dismiss on this basis was "a clear winner," he or she could not have reasonably determined that the argument was "so weak as to be not worth raising" (People v Turner, 5 NY3d 476, 483 [2005]). Defense counsel should have moved to dismiss the charge of depraved indifference murder.

Nonetheless, defendant failed to establish that he received ineffective assistance of counsel. In evaluating an ineffective assistance of counsel claim, we have looked to the fairness of the proceedings as a whole, or whether defendant received meaningful representation. We have recognized that "a defendant's showing of prejudice [is] a significant but not indispensable element" in determining whether the standard of meaningful 279*279 representation was achieved (People v Stultz, 2 NY3d 277, 284 [2004]).

Here, a motion to dismiss would not have been successful. The People established that defendant became enraged after losing something and fired off several gunshots. He then drove at excessive speed, in the wrong direction on the parkway for about five miles. During that time—more than four minutes— defendant did not appear to apply his brakes and several oncoming cars swerved to avoid him. He also passed numerous signs that should have alerted him that he was traveling in the wrong direction. In addition, he did not slow down or pull over in response to a truck driver sounding his air horn. There was, under the circumstances, ample evidence supporting the conclusion that defendant was aware that he was driving on the wrong side of the road and continued to do so with complete disregard for the lives of others. Therefore, although the motion to dismiss should have been made, we are persuaded that defendant was not prejudiced and otherwise received meaningful representation. Since there was no reasonable probability that the result would have been different, defendant's claim also fails under the federal standard (see Strickland v Washington, 466 US 668, 694 [1984]).

Perhaps the most difficult aspect of all of these cases is whether there was sufficient evidence that the defendants were aware of and appreciated the risks caused by their behavior— specifically, as to Heidgen and McPherson, that they knew they were driving on the wrong side of the parkway and proceeded regardless. However, as noted above, each jury rejected the conclusion that the defendant was too intoxicated to form the requisite intent. Despite defendants' seemingly inexplicable behavior, the People simply are not required to provide a motive for their conduct. Rather, depraved indifference can be proved circumstantially. Here, in each case, a rational jury could have found that the defendant, emboldened by alcohol or drugs, appreciated that he or she was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences.

One of Heidgen's additional arguments merits further discussion. He asserts that his blood was illegally drawn without his consent or a warrant, and should have been suppressed. The suppression court found that it was unnecessary to obtain defendant's consent before drawing his blood because it would 280*280 have been impossible to do so, given his complete disorientation. This finding was undisturbed by the Appellate Division and there is support in the record for the determination (see People v Harper, 7 NY3d 882, 883 [2006]).^[7]

Defendant also maintains that the police should have obtained a warrant before drawing his blood and that, under recent United States Supreme Court precedent, they were required to do so (see Missouri v McNeely, 569 US ___, 133 S Ct 1552 [2013]). In McNeely, the Supreme Court held that the natural dissipation of alcohol from the blood does not constitute a per se exigency justifying an exception to the warrant requirement of the Fourth Amendment—rather, whether a warrantless blood test was reasonable is dependent on the circumstances of the particular case (see 569 US at ___, 133 S Ct at 1563).

We note that, unlike the defendant in McNeely, Heidgen did not refuse to consent to the blood test. His blood was taken pursuant to a statutory presumption of consent to chemical testing that applies to all persons who operate vehicles within the state (see Vehicle and Traffic Law § 1194 [2] [a]). Although defendant raised several arguments at the suppression hearing concerning the validity of his blood test—whether the blood had been drawn by a licensed professional nurse, whether it was drawn within the statutory time limits and whether he was capable of consent—the current argument was not one of them. In the midst of an argument that Heidgen should have been asked for his consent, counsel at one point stated that "they should have called the district attorney's office, or certainly secured a warrant, and they didn't." This in no way amounts to an argument that the drawing of defendant's blood while he was incapacitated, under a statutory presumption of consent, violated his Fourth Amendment rights. Under the circumstances, we find the current argument unpreserved for our review.

We have considered defendants' remaining arguments and find them to be without merit.

281*281 Accordingly, the order of the Appellate Division in each case should be affirmed.

SMITH, J. (dissenting).

We have said several times that depraved indifference to human life is a very unusual state of mind (see People v Lewie, 17 NY3d 348, 359 [2011]; People v Suarez, 6 NY3d 202, 212 [2005]; People v Payne, 3 NY3d 266, 270 [2004]). But experience shows that juries, especially in cases with inflammatory facts, will often find depraved indifference where the evidence does not support it, and as a result we have reversed many convictions in recent years because the proof of this mens rea was insufficient (see People v Barboni, 21 NY3d 393, 408 n [2013, Smith, J., concurring] [collecting cases]).

Cases in which intoxicated drivers kill innocent people are among the most inflammatory, and thus among the most likely to generate depraved indifference murder convictions where a conviction of a lesser (but still serious) crime is all that is warranted. These three cases, to my mind, exemplify that problem. The majority says "intoxicated driving cases that present circumstances evincing a depraved indifference to human life are likely to be few and far between" (majority op at 267)—yet today it affirms all three of these convictions. In doing so, it departs from the rigor we have previously shown and makes it more difficult to attain our long-sought goal of reserving convictions of this crime for the very few cases that warrant them.

I find the evidence in all three cases insufficient to support murder convictions. My reasoning differs as between the Heidgen and McPherson cases on the one hand, and Taylor on the other.

I

Heidgen and McPherson are very similar cases. (In McPherson, a preservation problem complicates the analysis, but I agree with the majority that, for the reasons it explains, McPherson ultimately turns, as does Heidgen, on whether the evidence of depraved indifference was sufficient.) In both cases, a man became extremely drunk, drove for miles the wrong way on a divided highway, and caused a fatal accident. The simplest and likeliest inference from the evidence is that both men were so drunk that they did not know what they were doing. Why, after all, would anyone do such a dangerous thing on purpose?

Of course, Heidgen's and McPherson's drunkenness does not excuse what they did. They were unforgivably reckless in getting 282*282 on the highway at all in the condition they were in, and the consequences of their recklessness were horrible. They were unquestionably guilty of manslaughter in the second degree, a class C felony punishable by up to 15 years in prison (Penal Law §§ 125.15 [1]; 70.00 [2] [c]), and under today's statutes they would also be guilty of aggravated vehicular homicide, a class B felony punishable by up to 25 years (Penal Law §§ 125.14 [1], [4]; 70.00 [2] [b]). But it is clear, and the majority implicitly recognizes, that unless these two defendants knew they were driving the wrong way they were not guilty of depraved indifference murder. In the absence of such knowledge, their conduct does not show "depraved indifference to human life" (Penal Law § 125.25 [2]), which we have defined to mean "an utter disregard for the value of human life—a willingness to act ... because one simply doesn't care whether grievous harm results or not" (majority op at 274, quoting People v Feingold, 7 NY3d 288, 296 [2006]; see People v Valencia, 14 NY3d 927 [2010]).

The majority decides that the jury could have found that Heidgen and McPherson "knew they were driving on the wrong side of the parkway and proceeded regardless" (majority op at 279). I agree that, if that happened, these defendants could be found guilty of depraved indifference murder; and perhaps it did happen—but I do not see how a rational jury could find beyond a reasonable doubt that it did. Anyone who knowingly drives the wrong way on a divided highway must either have chosen a bizarre way of committing suicide or else be prey to some grandiose illusion that all the other cars will get out of his way. These records contain no more than hints that either Heidgen or McPherson was in such an extraordinary state of mind.

As to Heidgen, there is some evidence that he had been feeling depressed, but there is also much uncontroverted evidence that he seemed cheerful on the evening in question. He told police after the accident that he had been in "self-destruct mode"; but in the same conversation he forcefully denied that he was trying to harm himself ("No, not under any circumstances"). Drunk driving is itself self-destructive behavior, and I see no basis for inferring that Heidgen's reference to his own self-destructiveness meant anything more than this.

The majority relies more heavily on the testimony of two witnesses that, the majority says, would justify a finding that Heidgen engaged "in what amounts to a high speed game of chicken" (majority op at 277). One of the witnesses said that, when the 283*283witness's own car "drifted a little to the left .... it appeared as if [Heidgen's] car was drifting with me." Another, a passenger in the limousine that Heidgen crashed into, testified that Heidgen's car "moved ... toward us .... seemed to follow us." This could mean that Heidgen was deliberately aiming his car at the others, but I do not see how a reasonable juror could infer, with the confidence necessary to support a criminal conviction, that that is what he was doing. It is an extremely unusual thing to do.

As to McPherson, the evidence of a depraved state of mind is even thinner. It is a fair inference from the record that, before he started to drive, McPherson was angry at his girlfriend and fired several gunshots (not, so far as the record shows, at anyone or anything in particular). This simply does not prove that McPherson was either suicidal or on a near-insane pursuit of thrills—as he would have to be to drive knowingly the wrong way. It is much more likely that, in his drunken rage, he did not focus on his surroundings after he started driving.

As to both Heidgen and McPherson, the majority suggests that the very fact that they did drive the wrong way for miles, ignoring many signs and other events that should have alerted them, supports an inference that they knew what they were doing. To me, it supports more strongly the inference that—as blood tests proved—they were very drunk. Ignoring warnings that would alert a sober person is what drunk people do. I do not doubt that, as the majority says, a drunk person is not biologically incapable of perceiving and reacting to his surroundings, but anyone who has ever met one knows that they often fail to do so.

I find the Heidgen and McPherson cases to be indistinguishable from People v Valencia (14 NY3d 927 [2010]), another case involving a drunken wrong-way driver. The majority distinguishes Valencia on the ground that there was, in that case, a finding of fact that defendant was oblivious to the risks he was running (majority op at 275). But our memorandum in Valencia does not rely on, or even mention, that finding; it says the evidence was "insufficient" to support a finding of depraved indifference. If it was insufficient there, it is insufficient here.

There is, of course, one conspicuous difference between these two cases and Valencia: Valencia did not kill anyone. The conviction we reversed in Valencia was for depraved indifference assault. In these cases, three people died, one of them a young 284*284 child. Heidgen and McPherson are at fault for these deaths, and deserve severe punishment. But they are not—or at least, were not proved to be—murderers. They did not kill their victims intentionally, and—drawing all reasonable inferences in favor of the People—there is no more than a possibility that they did so with depraved indifference to human life. Their convictions should be reduced to manslaughter in the second degree.

II

I would also reduce Taylor's conviction, but hers is a different sort of case.

While we can only guess what was in Heidgen's and McPherson's minds when they committed their crimes, there is considerable evidence of what Taylor was thinking. While recording a song in tribute to her long-deceased father, she took Ecstasy and drank beer to help her feel "closer to her father" and "concentrate more." Then, after becoming annoyed with a friend, she left the recording session, taking her nephew with her to "get like the evil off" the child. She took the boy to her mother's house, where she removed first his clothes and then her own. After an argument with her mother, she left the house, still naked, trying "to get away from everything, all the problems, all the hate, all the greed." She got into a car, wanting to drive it "as fast as the car would take her, as fast as she could." She believed that "God wanted her to drive naked." As she was driving she observed that "things were coming at her fast." She eventually hit and killed a pedestrian: She later remembered "him being there and then being gone." After she hit another car and hers turned over, she was found with her eyes shut, saying "money, power, respect"—a chant she resumed after leaving the car, while jumping up and down. Then she got into a police car and tried unsuccessfully to drive it away.

On this record, a reasonable juror could infer beyond a reasonable doubt that Taylor chose to drive at a very high speed, that she knew that she might hit someone, and that she was unmoved by that risk. If she were not so obviously mentally impaired, it might be reasonable to conclude from these facts that she was depravedly indifferent to human life. But in my view, those words simply cannot be applied to someone so unhinged.

I do not suggest that Taylor was legally insane (though I am somewhat surprised she did not raise an insanity defense), or 285*285 that she had an extreme emotional disturbance as that term is used in the Penal Law (§ 125.25 [1] [a]; such a disturbance reduces what would otherwise be intentional murder to manslaughter, but is not mentioned in the depraved indifference murder statute). Still, it is hardly debatable that, even by comparison with other intoxicated drivers, Taylor was in a highly abnormal condition. Depraved indifference—the willingness to risk harm because one simply does not care—is a more clear-sighted and cold-blooded state of mind than the one this record shows. I would therefore reduce Taylor's conviction, as well as Heidgen's and McPherson's, to second degree manslaughter.

READ, J. (dissenting).

Judge Smith amply demonstrates that the evidence in these three cases is insufficient to support murder convictions under our depraved indifference murder jurisprudence as it has stood at least since People v Feingold (7 NY3d 288 [2006]) overruled People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]). We have elsewhere recounted the stepwise progression of our retreat from Register (see generally Feingold, 7 NY3d at 290-294; Policano v Herbert, 7 NY3d 588 [2006]), and there is no need to repeat that narrative here. Suffice it to say that jettisoning Register was controversial. Only three of the current members of the Court participated in the relevant decisions; and two of the three were not persuaded that overruling Register was wise or necessary, at least not initially (see People v Suarez, 6 NY3d 202, 219 [2005, Read, J., concurring in result on constraint; Graffeo, J., dissenting]). But the Court ultimately decided that depraved indifference is a culpable mental state; that recklessness, no matter how extreme, is not enough by itself to support a conviction for the crime of depraved indifference murder. Under Register, by contrast, a conviction for depraved indifference murder hinged upon an objective assessment of the degree of risk presented by the defendant's reckless conduct.

Essentially, the majority has resurrected the Register standard for cases in which intoxicated drivers kill innocent people, or at least has done so here in order to salvage these three convictions. But any departure from Feingold for drunk driving cases is contrary not only to our precedent, but also to legislative intent. The legislature in 2007—just a year after we decided Feingold—amended the Penal Law to create the new crime of aggravated vehicular homicide, a class B felony with a penalty of up to 25 years in prison (see Penal Law § 125.14; see also L 286*286 2007, ch 345).^[*] This crime occurs when an individual kills someone while driving with ability impaired by alcohol or drugs, along with the presence of at least one of the following factors: a blood alcohol content of .18 or higher; a DWI conviction within the previous 10 years; the crash caused the death of more than a single person; the crash killed one person and severely injured another; a previous conviction under Penal Law articles 120 or 125 involving the operation of a motor vehicle; the crash caused the death of a passenger in the offender's vehicle who was a child of 15 years of age or less; or the offender was driving with a suspended or revoked license from any state.

In fashioning this crime, the legislature was, at least in part, responding to prosecutors' pleas that "[r]ecent court decisions [i.e., Feingold and the decisions leading up to it] ha[d] so limited the application of the depraved indifference statutes to vehicular crimes as to make them inapplicable"; and "[p]erversely," a driver might as a result try to defend against such a charge by using a claim of extreme intoxication to negate the newly required culpable mental state (id. at 15-16, June 15, 2007 letter from District Attorneys Association of the State of New York [emphasis added]; see also Paul Shechtman, The Meaning of Depraved-Indifference Murder; New Legislation?, NYLJ, Apr. 4, 2005 at 26, col 1 [exploring the implications of the Court's evolving depraved indifference jurisprudence for the intoxication defense]).

In sum, the legislature has addressed the proper standards for assessing the culpability of drunk drivers who cause fatalities, and the proper measure of their punishment. And it did not choose to do so by amending the second-degree murder statute, which the majority now reinterprets so as to uphold these convictions for depraved indifference murder.

In each case: Order affirmed.

351*351 Matthew C. Hug, Troy, for appellant.

352*352 Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

353*353 Derek Champagne, District Attorney, Albany (Morrie I. Kleinbart of counsel), for District Attorneys Association of the State of New York, amicus curiae.

Judges CIPARICK, GRAFFEO, READ and PIGOTT concur with Judge SMITH; Judge JONES dissents in part and votes to modify by dismissing count seven of the indictment charging manslaughter in the second degree and by dismissing the count charging reckless endangerment, in a separate opinion in which Chief Judge LIPPMAN concurs.

OPINION OF THE COURT

SMITH, J.

A jury convicted defendant of second degree manslaughter and first degree reckless endangerment for her role in the events leading to the death of her son. In so doing, the jury found that defendant acted both recklessly and with depraved indifference to human life. We hold that the record supports the jury's finding as to the first of these mental states, but not the second. We therefore uphold the conviction for manslaughter and vacate the conviction for reckless endangerment.

I

On November 13, 2007, defendant and the man she lived with, Michael Flint, brought her eight-month-old son, Colbi Bullock, to a hospital emergency room. The child was not breathing and had no pulse. Attempts to resuscitate him did not succeed, and he was pronounced dead the following day.

354*354 At the time of his death, Colbi had injuries consistent with very severe abuse. There were many bruises on his face — around his cheek, his chin, both eyes and one ear — and there were also bruises elsewhere on his head, and on his neck, chest and abdomen. There were patterns of bruises and abrasions on his arms consistent with three human bite marks, two on the right arm and one on the left. The injuries on his neck were consistent with choking. His ribs had been broken at least a month previously; this injury was consistent with squeezing, or grabbing and shaking. It also appeared that the ribs had been reinjured more recently. A bone in the forearm had been recently broken, close to a bite mark. A doctor who conducted an autopsy found that injury to be "consistent with someone biting and snapping the arm at the same time." He also found evidence of a brain injury, in the form of hemorrhages less than four days old. In the doctor's opinion, the brain injury was the cause of death.

It is not disputed that Colbi's injuries were inflicted by Michael Flint. Flint pleaded guilty to two counts of depraved indifference murder, and related lesser charges. Defendant was prosecuted on two counts of second degree manslaughter based on two different theories: that, in the last two or three days of Colbi's life, she knew he had life-threatening injuries and failed to seek medical help; and that, in the last 45 days of his life, she left him in Flint's care, knowing that to do so was to put the child's life in danger. She was also charged with first degree reckless endangerment and with endangering the welfare of a child.

Defendant was convicted on all four counts. The Appellate Division reversed as to the first manslaughter count, finding that the evidence did not establish defendant's knowledge that the injuries the child had received were life-threatening, and otherwise affirmed (People v Lewie, 67 AD3d 1056 [3d Dept 2009]). A Judge of this Court granted defendant leave to appeal (14 NY3d 889 [2010]). We now affirm as to the manslaughter and endangering the welfare of a child counts, but reverse as to reckless endangerment.

II

The People have not challenged the Appellate Division's holding that the evidence was insufficient on the first of the two manslaughter counts, and defendant does not dispute the sufficiency of the evidence that she was guilty of endangering the welfare of a child. She does challenge the sufficiency of the 355*355 evidence supporting her remaining manslaughter conviction and her conviction for reckless endangerment. As to both counts, the critical question is what the evidence shows as to defendant's state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him. We will summarize the evidence on that issue, resolving any conflicts, as the jury presumably did, in the People's favor.

Defendant and Colbi began living with Flint when Colbi was about three months old. Defendant worked full time; she hired a babysitter, but Flint was often alone with Colbi. A few days before Colbi's death, defendant dismissed the babysitter and agreed with Flint that Flint would care for the child while defendant worked.

Seven friends and acquaintances of defendant testified to contacts with defendant, Flint and Colbi during the time the three of them lived together. Five of them said that they saw bruises on Colbi, and six of them said that defendant expressed, in one way or another, knowledge, belief or fear that Flint was abusing the child. One said that defendant told her "how she felt uncomfortable leaving the baby home with Michael, that she was scared, she never knew what she was going to go home to." The same witness said defendant "told me that Michael had shaken the baby ... shaken and bit him." Another witness recounted a conversation between defendant and Flint, as defendant described it to the witness: "she had told him he had to be more careful with Colbi ... and if he happened to get angry or upset, to shake the teddy bear instead of Colbi." (In a statement to police after Colbi's death, defendant admitted telling Flint something quite similar.) A third witness said that Flint had shown the witness some bruises on Colbi's head and that, when defendant learned of the conversation, she "walked over to Michael and started yelling at him .... She asked him why he pointed out the bruises to me."

Three witnesses said they had told defendant to call the police, leave the apartment or both. A fourth told her that the idea of Flint as babysitter "scared me and made me quite nervous for Colbi," and a fifth, when defendant told him that Flint would be babysitting, observed: "You're nuts."

There was other evidence that defendant knew Flint could be violent and cruel. Three witnesses testified that defendant told them Flint had abused her physically: one said that, according to defendant, Flint had shoved, hit and bitten her; another that 356*356defendant had "bruises ... that she said [were] from Michael"; and a third that she had "bruises and a burn" that she said "were from Mike." Two witnesses testified that defendant knew Flint had been charged with cruelty to a dog, and one said that she had "started to believe" he was guilty of that crime. The same witness testified that, according to defendant, Flint had once kicked a kitten against a wall; defendant later found the kitten dead; and "she believed Michael had killed the cat."

The events of the last days of Colbi's life, while directly relevant to the dismissed manslaughter count (based on failure to seek medical care), also have some bearing on the counts before us, because they show defendant's persistence in leaving Colbi with a dangerous man. Flint called defendant at work on November 12 to tell her that "the baby had fallen in the shower." Defendant reported this to a coworker who was a certified nursing assistant, and received advice about what symptoms to look for. Arriving home, defendant found, according to her statement to the police, that Colbi "had bruising on the side of his face, his eyes were black and blue, he had a fat lip, and he had redness on his torso and his neck area." Flint told her the baby had vomited — one of the symptoms the coworker had identified as calling for medical attention.

Defendant not only sought no care for the baby; there was evidence that she tried to conceal the injuries. A witness who encountered Colbi, Flint and defendant the following morning, before defendant went to work, testified that her attention was drawn by Colbi's "persistent, weak ... very strange cry." Colbi was dressed in a snowsuit, with a hood covering his head (though defendant herself wore a T-shirt). When the witness slid the hood back, she saw that Colbi had two black eyes, and asked defendant: "Did you take him to the hospital?" Defendant replied, falsely, that she had been at the hospital all night, and that the doctor had told her that the baby was fine. Later that day, defendant went to work as usual, leaving Colbi with Flint for the last time.

We must decide whether this evidence shows the degree of culpability necessary to support defendant's manslaughter and reckless endangerment convictions. We consider the two separately.

Manslaughter

Defendant was convicted of manslaughter in the second degree, a class C felony, under Penal Law § 125.15 (1), applicable to someone who "recklessly causes the death of another 357*357 person." "Recklessly" is defined in Penal Law § 15.05 (3), which says, in relevant part:

"A person acts recklessly with respect to a result... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur ... The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

The question here is whether the jury could find, beyond a reasonable doubt, that defendant was aware of, and consciously disregarded, a substantial and unjustifiable risk that leaving Colbi in Flint's care would lead to Colbi's death. It is not enough that defendant should have known the child's life was in danger, or that she did know the child could be seriously hurt. She must have actually known of, and consciously disregarded, a risk to the child's life (see People v Wong, 81 NY2d 600, 608 [1993]). On the other hand, it is not necessary to a manslaughter conviction that defendant knew the child would die, or believed it likely. Even a small risk that a baby will die of child abuse is "substantial and unjustifiable."

We conclude that the evidence is sufficient to support the jury's finding that defendant knew such a risk existed. The evidence shows that defendant knew, or at least believed it possible, that Flint was hitting, shaking and biting her child. She knew that he was capable of inflicting significant injury on an adult, herself. She believed him capable of killing a small animal in a rage. She was worried enough to tell Flint that, if he was angry, he should "shake the teddy bear instead of Colbi." Yet, she left Colbi with Flint again and again — even after she saw, on November 12 and 13, that Colbi had been seriously hurt.

It is, perhaps, conceivable that defendant did not actually know that Flint's maltreatment of Colbi created a risk to the child's life, but the jury could rationally find that she did know it. The dissent, in concluding otherwise, proceeds on the mistaken premise that "[w]e know" from the Appellate Division's dismissal of the first manslaughter count that defendant perceived no substantial and unjustifiable risk to Colbi's life during the child's last three days (dissenting op at 367). In fact, the dismissal establishes only that the People failed to prove defendant knew the injuries Colbi had already received 358*358 were life-threatening. There is no inconsistency in holding, as the Appellate Division correctly did, that the People presented sufficient evidence that defendant knew — before and during the last days of Colbi's life — of a substantial and unjustifiable risk that Flint would injure him fatally.

Having found that defendant knew of that risk, the jury was also justified in finding that she consciously disregarded it. And it is obvious that the risk was "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." The evidence was therefore sufficient to support defendant's conviction for manslaughter in the second degree.

Reckless Endangerment

Reckless endangerment in the first degree is defined by Penal Law § 120.25: "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."

This crime, a class D felony, is less serious than manslaughter in the second degree. Yet the mental culpability necessary to support defendant's reckless endangerment conviction is greater than that required to support her manslaughter conviction: to be guilty on the reckless endangerment count, she must have acted not only recklessly, but also with depraved indifference to human life.

The reason for this apparent anomaly is an exercise of prosecutorial discretion. The People chose not to charge defendant with depraved indifference murder, though such a charge has just as much basis in the record as the charge of first degree reckless endangerment. The definition of depraved indifference murder contained in Penal Law § 125.25 (2) is identical to the definition of reckless endangerment that we have quoted, except that the murder statute adds the words "and thereby causes the death of another person." Here, of course, the person who was put at risk did die, and indeed the jury, in convicting defendant of manslaughter, so found. Thus the jury that convicted defendant on the reckless endangerment count would, if it was logically consistent, also have convicted her of depraved indifference murder had that charge been presented to it. And we cannot uphold her reckless endangerment conviction unless we would uphold a murder conviction on the same facts.

The distinction between conscious disregard of a known risk to human life (required for a reckless manslaughter conviction) 359*359 and depraved indifference to human life (required for a depraved indifference murder or first degree reckless endangerment conviction) can be hard to grasp, especially in a disturbing case like this one. Consciously to disregard a substantial risk to the life of one's own child — as the jury found, on legally sufficient evidence, this defendant did — is shocking behavior, and in ordinary speech people might call it "depraved." But "depraved indifference to human life," as used in the murder and reckless endangerment statutes, is something even worse.

Our cases make clear that the word "indifference" is to be taken literally: "depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act... because one simply doesn't care whether grievous harm results or not" (People v Feingold, 7 NY3d 288, 296 [2006], quoting 7 NY3d at 298 [Ciparick, J., dissenting], quoting People v Suarez, 6 NY3d 202, 214 [2005]). In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out. This state of mind is found only in "rare cases" (Suarez, 6 NY3d at 218-219 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Such cases do exist; in the situation before us, Flint pleaded guilty to depraved indifference murder, and we do not suggest that his plea was ill-founded. But depraved indifference to the life of another is still rare, and it is surely even rarer when the other person is one's own child.

Here, while the evidence certainly shows that defendant cared much too little about her child's safety, it cannot support a finding that she did not care at all. On the contrary, the evidence shows that defendant feared the worst and — recklessly, as the jury found — hoped for the best. A witness who unsuccessfully advised defendant to call the police about Flint's behavior testified that defendant seemed "worried," and no witness's testimony points to a contrary finding. Some of the evidence most damaging to defendant on the manslaughter count is actually favorable to her on the depraved indifference issue. Thus her statement that she "was scared" and "never knew what she was going to go home to" shows that she was fearful of harm to her baby, not that she was indifferent to the possibility. And in telling Flint to "shake the teddy bear instead of Colbi," she was trying, however weakly and ineffectively, to protect the child.

There is, it is true, evidence that defendant not only knew of, but tried to conceal, Flint's abuse of the child. She chastised 360*360 Flint for showing someone Colbi's bruises and, in the last hours of Colbi's life, she tried to hide his injuries and lied to minimize their severity. Even this, however, does not show — and nothing in the record shows — that defendant did not care whether Colbi lived or died. Trying to cover up a crime does not prove indifference to it.

In short, while the evidence is sufficient to support the jury's finding that defendant was guilty of manslaughter, it would not support a conviction for the even more serious crime of depraved indifference murder. Perhaps the People implicitly recognized this when they decided not to bring a murder prosecution — even though they asked the jury to find all the elements of depraved indifference murder. Since a murder conviction could not stand on this record, as a matter of logic the conviction of depraved indifference reckless endangerment cannot stand either.

III

Defendant suggests several other reasons for reversal. We reject them all; three warrant some discussion.

First, defendant claims that one of several statements that she gave to the police after Colbi's death should have been suppressed because it was taken in violation of her "indelible" right to counsel (see generally People v Lopez, 16 NY3d 375, 377 [2011]; People v Bing, 76 NY2d 331 [1990]). That right attached, defendant says, when counsel was appointed for her in a Family Court proceeding, hours before Colbi was officially pronounced dead. Though the child was, according to the first doctor who saw him, "moribund" and "essentially deceased" when he arrived at the hospital on November 13, a vain effort to resuscitate him continued for almost 24 hours. During that time, a proceeding was begun to remove Colbi from defendant's home, and Family Court appointed a Legal Aid lawyer to represent defendant. The People were notified of the appointment at 4:06 P.M. on November 14; Colbi was declared dead, thus mooting the Family Court proceeding and ending the attorney-client relationship, at 6:18 P.M. During that two-hour interval, defendant, who had previously received Miranda warnings and agreed to speak to the police, continued answering their questions. She now says that the questioning should have stopped when the People received notice that she was represented by counsel.

We have never held, and we now reject the argument, that the indelible right to counsel can attach by virtue of an attorney-client relationship in a Family Court or other civil proceeding. 361*361 The indelible right, as Judge Kaye's concurring and dissenting opinion in Bing explained, has "at its core the perception that in criminal cases — wholly unlike civil cases — the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when ... directly confronted with the awesome law enforcement machinery possessed by the State" (76 NY2d at 351 [internal quotation marks omitted and emphasis added]). Thus while an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel (see Lopez, 16 NY3d at 380), a relationship formed in a civil matter is not entitled to the same deference.

People v Townes (41 NY2d 97 [1976]), on which defendant relies, is distinguishable. There, an attorney-client relationship was formed in a criminal proceeding: "the defendant was arraigned in criminal court and counsel was assigned by order of that court" (id. at 99). A police officer then interviewed the defendant, in the absence of counsel, in connection with a complaint the defendant had filed with the Civilian Complaint Review Board, and the People sought to use the resulting statements in the criminal case. We held that the criminal and Review Board proceedings were so closely related that the indelible right, which attached when an attorney-client relationship was formed in the criminal case, barred questioning in the non-criminal one. But here no relationship was formed in a criminal case, and no indelible right ever attached.

Secondly, defendant argues that the trial court erred in its response when, during jury deliberations, one of the jurors sent an odd and inappropriate note asking for the opportunity to thank all concerned, after the verdict was rendered, for the privilege of serving. The note mentioned, among other things, the breakup of the juror's marriage and her view that the male lawyer who sat in the second chair at the prosecution table was a "Cutie"; the juror asked, perhaps jokingly, to be given that lawyer's telephone number when the trial was over.

We think the trial judge handled this problem quite skillfully. After disclosing the note to counsel and discussing it with them, he interviewed the juror in counsel's presence; explained to her gently that the note was inappropriate; and obtained her assurance that nothing, including her favorable impression of a prosecutor, would prevent her from being fair to both sides. Nothing in the interview, or in the note itself, suggests that the 362*362 juror was biased. Indeed, she made clear that her gratitude for the opportunity to serve extended not only to the judge and both sides' lawyers, but to defendant personally. Defendant argues in substance that the juror's note and her comments during the dialogue in chambers show that the juror had an eccentric personality, but eccentrics are not barred from serving on juries. Under CPL 270.35 (1), a sworn juror may be discharged only if the court finds that she "is grossly unqualified to serve ... or has engaged in misconduct of a substantial nature." This juror was not grossly unqualified and engaged in no substantial misconduct. There was no reason for the trial judge either to discharge her or to make further inquiry.

Thirdly, defendant complains of five words in the trial court's response to a juror's question during deliberations about the meaning of recklessness. In its original charge, the court defined that term twice, once in explaining the elements of manslaughter and again in explaining the elements of reckless endangerment. The court's definition tracked the language of Penal Law § 15.05 (3), and defendant does not complain of it. After retiring to deliberate, the jury asked several times for the definition to be reread, and the court obliged. Later, in response to a jury note, the court gave a slightly expanded version of the definition, not changing its substance but separating it into three components — awareness of a risk, conscious disregard of the risk, and gross deviation from a reasonable person's standard of conduct. This supplemental charge, also, is not now challenged.

After some other supplemental instructions were given, a juror asked for further explanation of recklessness, saying: "Are we supposed to do [sic] consider how the Defendant is thinking or what a reasonable person would think?" After a discussion with counsel outside the jury's presence, the court replied that recklessness "requires both of those things." The judge again took the jury through the three components of recklessness, summarizing the second — conscious disregard of a known risk — in this way:

"Then the second part is required as well. So, besides the first part, the second part must be that he or she — in this case, the Defendant — was aware of and consciously disregarded the risk. So, that goes to the particular person, what they saw, what they should have seen, and what they disregarded" (emphasis added).

363*363 The court concluded its response to the juror's question by saying:

"So, long and short answer to your question is both of those things come in: What the individual Defendant's aware of, and what she or he consciously disregards; and then secondly, whether that risk that they're aware of deviated from — constitutes a gross deviation from the standard that a reasonable person would observe."

It is undisputed that, in including the words "what they should have seen" in its description of conscious disregard, the court misspoke. The jury was required to consider what risk defendant actually perceived and disregarded, not what she should have perceived. Indeed, when this supplemental charge is examined minutely, the words "should have seen" do not make sense; it is not possible "consciously" to disregard something one "should have" seen but did not.

In evaluating a jury charge, however, we are "not limited to the appropriateness of a single remark" (People v Umali, 10 NY3d 417, 426 [2008]). Rather, we examine "the context and content of the entire charge" (id. at 427) and determine whether "the instruction as a whole ... was likely to confuse the jury" (People v Fields, 87 NY2d 821, 823 [1995]). We are satisfied that the minor error in the supplemental charge here created no significant risk of confusion. The jurors had already heard, several times, a completely correct explanation of recklessness as defined in the Penal Law. The juror's specific question — should the jury consider what defendant actually thought, or what a reasonable person would have thought — was concisely answered at the beginning and end of the supplemental charge with the word "both." And the supplemental charge as a whole makes clear that the jury must consider both the risk defendant actually perceived and disregarded, and what a reasonable person in her situation would have done. The supplemental charge, taken as a whole, was proper.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified by vacating defendant's conviction for reckless endangerment in the first degree, dismissing that count of the indictment and remitting the matter to County Court for resentencing, and as so modified affirmed.

JONES, J. (dissenting in part).

I agree with the majority's dismissal of the reckless endangerment count. However, I dissent 364*364 from that portion of the majority's opinion upholding defendant's conviction for manslaughter in the second degree (count seven of the indictment) because I do not believe this conviction was supported by legally sufficient evidence.

In a legal sufficiency inquiry, this Court's role is limited to determining whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Contes, 60 NY2d 620, 621 [1983]). Where the evidence adduced at trial establishes "any valid line of reasoning and permissible inferences [that] could lead a rational person" to convict, then the conviction survives sufficiency review (People v Williams, 84 NY2d 925, 926 [1994]). "A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" (People v Danielson, 9 NY3d 342, 349 [2007]).

Penal Law § 125.15 (1) provides that a "person is guilty of manslaughter in the second degree when ... [h]e recklessly causes the death of another person" (emphasis added). Penal Law § 15.05 (3) defines the term "recklessly" as follows:

"A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

Thus, the elements of second-degree manslaughter are "the creation of a substantial and unjustifiable risk [of death]; an awareness and disregard of the risk on the part of defendant; and a resulting death" (People v Licitra, 47 NY2d 554, 558 [1979]).

Our case law makes clear that causation is "an essential element which the People must prove beyond a reasonable doubt" in a second-degree manslaughter prosecution (People v Stewart, 40 NY2d 692, 697 [1976]). That is, "the defendant's actions must be a sufficiently direct cause of the ensuing death" (id.). If the evidence only establishes a possible or probable connection between defendant's acts and the victim's death, the evidence is not legally sufficient to support a conviction for second-degree manslaughter (see id.).

365*365 Defendant Alicia Lewie is not alleged to have herself ever physically abused her child. She is accused of recklessly causing the death of her eight-month-old son by repeatedly leaving him in her live-in boyfriend's (Michael Flint) unsupervised care during a 45-day period prior to the child's death (between October 1, 2007 and November 14, 2007), despite being aware that Flint was physically abusing the child. Because she is a "passive" defendant charged with reckless manslaughter, this Court's decision in People v Wong (81 NY2d 600 [1993]) has application. In Wong, both caretakers of an infant who died of shaken baby syndrome were convicted of first- and second-degree manslaughter and endangering the welfare of child, even though there was no evidence as to which of the caretakers shook the child. In reversing the convictions, this Court held that the prosecution had to establish that the passive defendant was personally aware that the physical abuse had taken place and "that such abusive conduct created a risk that the infant would die without prompt medical treatment" (Wong, 81 NY2d at 608 [emphasis added]; see People v Northrup, 83 AD2d 737 [3d Dept 1981]). In Northrup, defendant mother was convicted in Otsego County Court of depraved indifference murder stemming from the death of her son at the hands of her live-in boyfriend, who physically abused the child. Defendant was charged with causing her son's death by unjustifiably and inexcusably failing to obtain or provide medical care or assistance for him. In reversing this conviction on legal sufficiency grounds, the Appellate Division wrote:

"Evidence is lacking that this 23-year-old woman, without medical training or knowledge, was cognizant of that risk [of death] and consciously disregarded it. Although the external injuries were serious, [her son] ceased crying and walked about without complaining shortly after [her boyfriend] left. Particularly noteworthy is the fact that the injury causing his death was an internal one, not detectable from observing the boy's body. In our view, this record does not support a finding that defendant acted recklessly" (Northrup, 83 AD2d at 738 [emphasis added]).

The Northrup court further stated, "[s]ince reckless conduct is also a requisite for manslaughter in the second degree, one of the lesser included offenses which was charged, defendant's conviction of that crime must likewise be ruled out" (83 AD2d at 738).

366*366 The prosecution here built its reckless manslaughter case around the allegation that sometime during the stated 45-day period, defendant actually became aware that Flint was physically abusing her son and chose to ignore the grave risk this conduct posed for the child by repeatedly leaving him in Flint's unsupervised care. To make out its case, the prosecution had witnesses testify that defendant told them that Flint, on numerous occasions, had physically abused her and was physically abusing her child in her absence. Further, the prosecution proffered medical evidence which confirmed that defendant's son had been repeatedly abused during the period of time that defendant left him in Flint's unsupervised care.

While this evidence may have shown that defendant was criminally negligent in leaving her child with Flint, it did not establish the elements necessary to support a reckless manslaughter conviction.^[*] The evidence, when viewed in the light most favorable to the prosecution, established that the acts of abuse took place while defendant was at work — i.e., defendant could not know the severity of the abuse to the child; it was not possible for defendant to know that the injuries sustained by her child were life-threatening or could contribute to his death because to the naked eye they only appeared to be marks or bruises; hospital personnel were only able to determine the extent of the child's internal injuries after multiple X rays and blood tests were performed; and the internal injuries that caused the child's death were only detected upon the medical examiner's internal inspection of the child's remains during the postmortem examination. Further, while the evidence established that the child's death resulted from trauma to the head, the medical examiner was unable to pinpoint precisely when the trauma was inflicted upon the child. He could only opine that the fatal injuries were sustained within four days prior to his death (which occurred on November 14, 2007).

While the evidence adduced at trial established that defendant was aware of a risk of abuse to her son, the prosecution did not meet its burden of establishing defendant's awareness and conscious disregard of a substantial and unjustifiable risk of her son's death. There was no evidence to establish at what point 367*367 during the stated 45-day period defendant actually perceived that her child was exposed to a substantial and unjustifiable risk of death. We know from the unchallenged dismissal of the reckless manslaughter count under count six of the indictment that the jury could not rationally find that defendant perceived this risk during the last three days of her son's life, the last three days of the stated 45-day period. We further know from the dismissal of count six that the jury could not rationally find that defendant perceived this risk when during the three days covered by that count she left her child in Flint's care when she left for work. Nor was there evidence that defendant would have disregarded a substantial and unjustifiable risk to her child's life even had one been apparent. Her actions — on November 12 and 13, 2007 — with respect to her child — i.e., attempting to treat him with over-the-counter medications, feeding and playing with him, checking on him throughout the night, and when it became apparent that his condition worsened, calling 911 and taking him to the hospital — belie the allegation that she would have consciously disregarded a substantial and unjustifiable risk to her child's life.

Moreover, the evidence adduced by the prosecution did not prove that defendant was aware that Flint's abusive conduct created a risk that defendant's child would die without prompt medical treatment (see Wong, 81 NY2d at 608). As stated supra, it was not possible for defendant to know that the injuries sustained by her child were life-threatening or could contribute to his death. Further, there was no proof demonstrating that defendant's acts (of leaving the child with Flint) or omissions were a sufficiently direct cause of the child's death (see Stewart, 40 NY2d at 697).

In upholding defendant's reckless manslaughter conviction, the majority concludes that the jury could logically find, based on the evidence adduced at trial, that defendant knew a substantial and unjustifiable risk of death existed and consciously disregarded it (see majority op at 357). But, in support of the inference it claims the jury could make, the majority points to evidence of defendant's awareness of a risk of physical abuse, not death. Stated differently, the majority, without support, equates knowledge of a risk of physical abuse with knowledge of a risk of death. In effect, the majority has held that once a parent is aware his/her child has been physically abused by someone with whom they regularly leave the child, even where the abuse occurs outside the presence of the parent, and even 368*368 where any injuries sustained appear to be superficial, that parent may be held criminally liable for reckless manslaughter if the child dies at the hands of the abusive caregiver. Such a ruling marks an unwarranted departure from our jurisprudence and a drastic diminution of the proof required to make out reckless manslaughter in a case involving a passive defendant parent. Indeed, the majority's holding appears to read the very stringent direct causation requirement out of the reckless manslaughter statute in cases involving passive defendant parents.

For the foregoing reasons, I would modify by dismissing count seven of the indictment charging reckless manslaughter and by dismissing count eight of the indictment charging reckless endangerment.

Order, insofar as appealed from, modified, etc.

395*395 Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.

396*396 Gregory S. Oakes, District Attorney, Oswego, for respondent.

Chief Judge LIPPMAN and Judges GRAFFEO, READ and RIVERA concur with Judge PIGOTT; Judge SMITH concurs in result in an opinion; Judge ABDUS-SALAAM taking no part.

397*397 OPINION OF THE COURT

PIGOTT, J.

On this appeal, we are called upon to address the impact of this Court's recent jurisprudence concerning depraved indifference to human life, where defendant is accused of repeatedly striking a victim less than 11 years old and failing to summon medical assistance before the child dies. In this case we hold that there was sufficient evidence to convict defendant of depraved indifference murder as well as first-degree manslaughter. We also conclude that County Court committed no reversible error and that defendant's right to effective assistance of counsel was not violated.

I.

The facts pertinent to this appeal are as follows. Shortly after 8 p.m. on August 18, 2008, the mother of a 15-month-old boy received a telephone call from her boyfriend, defendant Barboni. Barboni, who had been alone with the child since around 4:45 p.m., told her, in what was described as a calm tone of voice, that she needed to come home because the child was not breathing. The mother rushed home to find her son in his crib, badly bruised, and unconscious. Defendant denied knowing what had happened. The child was pronounced dead at a nearby hospital shortly thereafter.

Defendant was interviewed that night at the police station. He had no explanation for the child's death, and could not 398*398 account for reddish stains that the police observed on his clothing. At approximately 1:20 a.m., an attorney called the police station, and questioning stopped. The attorney spoke with defendant, and then with the investigator, who asked for defendant's clothes. Both the attorney and defendant consented, and the clothing was then subjected to forensic analysis.

Defendant was arrested and charged with murder in the second degree (Penal Law § 125.25 [4]) and manslaughter in the first and second degrees (Penal Law §§ 125.20 [4]; 125.15 [1]). As part of his omnibus motion, submitted by new defense counsel, defendant sought suppression of the clothing taken from him at the station house, arguing that the seizure violated his right to counsel. Following a hearing, County Court denied the motion, reasoning that the police legitimately concluded that defendant was acting on the advice of counsel when he consented to the seizure of his clothing. Defendant then proceeded to a jury trial in County Court.

II.

During voir dire, one prospective juror indicated that he was unsure whether he would apply a different, more favorable standard with respect to the credibility of testimony by police officers when it directly conflicted with civilian testimony. Neither the prosecution nor the defense challenged this prospective juror for cause. When County Court asked the attorneys to state their peremptory challenges, defense counsel displayed a moment's uncertainty concerning whether this prospective juror had already been challenged. Informed that he was still unchallenged, counsel said, "Then we are fine ... we are going to keep him. I'm sorry, I got my people mixed up." County Court reminded counsel that the prospective juror was the one who "was unsure." "I know that," counsel responded, "I wanted to keep him. I just confused myself." The prospective juror was seated and served throughout the trial.

At trial, the jury heard evidence from three police officers regarding their questioning of defendant and his inability to explain the stains on his clothing. Forensic scientists testified that the stains on defendant's clothing were positive for blood, and that the blood matched the child's DNA.

The jury heard extensive testimony concerning the autopsy. A medical examiner testified that the child had approximately 25 "fresh" injuries, including two "clusters" of injuries to the face. The child had suffered four distinct skull fractures. The 399*399 examiner opined that the child's injuries had been caused by "blunt force trauma," involving a minimum of "five strikes" or "impacts."

An ocular pathologist, who had examined the child's eyes during a postmortem examination, testified that his eye injuries were consistent with "vigorous shaking with or without impact." Significantly, a neuropathologist, who had examined the child's brain and spinal cord, opined that he had survived for approximately two hours following onset of the trauma.

The defense called a pediatrician, who was unable to give a precise time as to when the injuries had occurred, but testified that a neuropathologist would be in a better position to do so. The pediatrician opined that signs of the child's extensive bruising would have been recognizable "[w]ithin a half hour" of the traumatic injury, and that he would have been in a substantial amount of pain and probably crying, screaming, or else "lethargic."

Finally, an anatomic pathologist was called by the defense. He opined that the interval between the child's injuries and death was at least two hours; like the pediatrician, he testified that a neuropathologist would be in a better position to give an estimate.

Defendant moved, unsuccessfully, for a trial order of dismissal on all counts. With respect to depraved indifference murder, defense counsel claimed that the People were obliged, but had failed, to prove "that the child was ... likely to die or that the attack was prolonged." He also argued that, if there was sufficient evidence of any type of murder, it could not be depraved indifference murder, because defendant's conduct was "in essence, intentional, not reckless."

Following deliberations, the jury found defendant guilty of one count each of murder in the second degree (Penal Law § 125.25 [4] [depraved indifference murder of a child]) and manslaughter in the first degree (Penal Law § 125.20 [4] [intent to cause child physical injury; recklessly causes child's death]).

III.

Defendant appealed the judgment of conviction, alleging insufficiency of the evidence on both counts, ineffective assistance of counsel, and error as to the suppression motion. The Appellate Division affirmed, holding that the evidence was legally sufficient to establish the mens rea elements necessary for 400*400 depraved indifference murder, noting that "the child's suffering yielded an apathetic response from defendant," who "did not seek medical assistance for him" (90 AD3d 1548, 1549 [4th Dept 2011]). It also ruled that there was legally sufficient evidence to support the first-degree manslaughter conviction. As to the claimed ineffective assistance of trial counsel, the Court held that defendant had failed to establish the absence of a legitimate explanation for defense counsel's alleged error during jury selection. Finally, as to suppression of defendant's clothing, the Court determined that there was no error, because defendant and his then attorney had consented to the seizure. Moreover, defendant had not been denied effective assistance of counsel during his questioning by the police.

A Judge of this Court granted defendant leave to appeal. We now affirm.

IV.

A person is guilty of depraved indifference murder of a child, under Penal Law § 125.25 (4), when "[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person." Defendant argues that the evidence was legally insufficient to establish circumstances evincing a depraved indifference to human life or that he recklessly engaged in conduct that created a grave risk of death or serious physical injury to the child.

This appeal is governed by the requirement that, in proving the existence of "circumstances evincing a depraved indifference to human life," the People must show that, at the time the crime occurred, defendant had a mens rea of "utter disregard for the value of human life" (People v Feingold, 7 NY3d 288, 296 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]). Put simply, the People must prove that defendant did not care whether his victim lived or died (see People v Matos, 19 NY3d 470, 476 [2012]; People v Lewie, 17 NY3d 348, 360 [2011]; Feingold, 7 NY3d at 296). Additionally, the People must prove a second mens rea, namely recklessness. Under Penal Law § 125.25 (4), this element is recklessness as to a grave risk of serious physical injury or death.

In two recent cases, which, like this one, involved a very young victim, this Court held that the evidence was insufficient to 401*401 prove the mens rea of wanton indifference. The first of those cases was People v Lewie, where we vacated a conviction for reckless endangerment in the first degree (Penal Law § 120.25), which contains the same two mens rea elements as depraved indifference murder. Lewie persistently left her eight-month-old son alone with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous injuries on the child, finally causing a brain injury that led to his death. We reasoned that the evidence was insufficient to support the conclusion that Lewie "did not care at all" about her child's safety (Lewie, 17 NY3d at 359).

"On the contrary, the evidence shows that defendant feared the worst and ... hoped for the best. A witness ... testified that defendant seemed `worried,' and no witness's testimony points to a contrary finding.... [Defendant's] statement that she `was scared' and `never knew what she was going to go home to' shows that she was fearful of harm to her baby, not that she was indifferent to the possibility" (id.).

Then, in People v Matos (19 NY3d 470 [2012]), this Court dismissed a depraved indifference murder count against a woman whose intimate partner severely beat her 23-month-old son, resulting in his death. The Court held that "the People failed to prove that [the mother] did not care whether her son lived or died" (19 NY3d at 476), given the evidence that she splinted her son's leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.

Defendant concedes that his case is factually distinct from Lewie and Matos in that his indictment required the jury to find that he was the actor who had inflicted the injuries that resulted in the child's death. But this difference, he argues, should not alter the analysis; the evidence was insufficient to establish the mens rea of depraved indifference in his case, just as it was lacking in Lewie and Matos. We disagree.

Here, viewing the evidence in the light most favorable to the People, as we must, the jury heard testimony—including medical and forensic proof—that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant's assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had 402*402 injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child's symptoms were merely signs of a trivial injury or illness. Thus, contrary to defendant's contention, it is significant that defendant was the actor who had inflicted the injuries in the first place.

Defendant also argues that the People did not prove that his state of mind at the time that the child was injured was one of depraved indifference to human life. He argues that it is, for example, consistent with the evidence presented that he experienced a fit of rage in which he repeatedly struck the child. In such a scenario, his state of mind might better be described as blind anger, rather than wanton indifference. However, the charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant's inaction for the two hours that elapsed between the injuries and death. In light of the child's vulnerability and utter dependence on a caregiver, defendant's post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant's knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind. His dispassionate voice on the telephone, reporting that the child was not breathing, is further, albeit circumstantial, evidence of this callous indifference to the child's life.

Defendant further contends that insufficient evidence was presented to support the prosecution's theory that he "engaged in a brutal and prolonged and ultimately fatal course of conduct" against the child. He contrasts his own actions with those underlying People v Best (85 NY2d 826 [1995] [defendant repeatedly beat her nine-year-old son, inflicting large open wounds through which bacteria entered, eventually causing his death]) and People v Poplis (30 NY2d 85 [1972] [defendant caused the death of a 3½-year-old child by repeatedly beating her over a course of several days]). Defendant points out that the evidence presented in this case, in contrast to those, is consistent with an attack that was of short duration.

403*403 The language of the prosecution theory originates in this Court's decision in Suarez (6 NY3d at 212). There, the Court set out the "few rare circumstances" in which a defendant may be convicted of depraved indifference murder based on conduct that endangers only one person. The Court outlined two recurring fact patterns—"abandon[ing] a helpless and vulnerable victim in circumstances where the victim is highly likely to die" and "engag[ing] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (id. at 212). However, the Court, in noting the existence of "other extraordinary cases" (id. at 213), accepted that these fact patterns did not constitute an exhaustive list of situations in which a defendant may properly be convicted of depraved indifference murder based on a one-on-one killing.^[1] The standard is whether the People have shown that defendant's state of mind was one of utter disregard for the value of human life. Here, the People met this standard because the horrific nature of defendant's assault of the child was clearly intended to be encompassed within the depraved indifference murder of a child statute, and the jury could properly find defendant guilty of that crime even if the murderous acts did not occur over an extended duration.

A brutal course of conduct against a vulnerable victim occurring over a prolonged or extended period of time is more likely to be associated with the mental state of depraved indifference to human life than brutality that is short in duration and is not repeated. This is because the actor had the opportunity to regret his actions and display caring, but failed to take the opportunity. In the present case, defendant argues that his course of conduct against the child was not prolonged. But defendant's argument focuses exclusively on the duration of his physical assault on the child, which may have been brief. However, this argument ignores the evidence that, by his later inaction—his failure, over some two hours, to seek medical attention for the child—defendant 404*404 turned a brutal assault into a brutal and prolonged course of conduct against a vulnerable victim.^[2] There is no requirement in our case law that a violent course of conduct must occur over days or months, in order to be "prolonged."

We conclude that, viewing the facts in a light most favorable to the People, a rational jury could have found beyond a reasonable doubt that defendant's state of mind was one of utter indifference to the value of human life.

V.

Defendant's final challenge specific to his murder conviction is that the evidence was insufficient to prove the second mens rea element of depraved indifference murder of a child: recklessness as to a grave risk of serious physical injury or death. Defendant argues that the evidence, such as the multiple skull fractures inflicted on the child, is consistent only with the conclusion that the person who inflicted the child's injuries "acted intentionally," and therefore a conviction of depraved indifference murder cannot stand. We disagree.

It may be true that the evidence presented to the jury leads inexorably to the conclusion that the perpetrator acted voluntarily in his course of conduct against the child. However, it does not show that he intended to cause death or serious physical injury, in the sense of having that as a conscious objective or purpose. Defendant did not use a weapon, nor was there any evidence that defendant tried to smother the child—acts that of themselves tend to imply intent to cause death or serious physical injury. The extensive injuries suffered by the child are explicable in light of his tender age and do not in themselves require the conclusion that the perpetrator intended to cause serious physical injury or death. The present case is therefore clearly distinguishable from those in which the Court has had occasion to note that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (Suarez, 6 NY3d at 211-212, quoting People v Payne, 3 NY3d 266, 272 [2004]).

In short, there was no evidence that would have compelled the jury to infer that defendant's state of mind was one of intent 405*405 rather than recklessness with respect to the risk of the child's death or serious physical injury. By contrast, the jury could have rationally found beyond a reasonable doubt that defendant consciously disregarded the substantial and unjustifiable risk that death or serious physical injury would result, in a manner that constituted a gross deviation from the standard of conduct that a reasonable person would have observed (see Penal Law § 15.05 [3] [definition of "recklessly"]).

VI.

Defendant next argues that the evidence was legally insufficient to prove beyond a reasonable doubt that he had the requisite mens rea of "intent to cause physical injury to a person less than eleven years old," required for conviction of manslaughter in the first degree (Penal Law § 125.20 [4]).

"A jury is entitled to infer that a defendant intended the natural and probable consequences of his acts. The element of intent is rarely proved by an explicit expression of culpability by the perpetrator; and competing inferences to be drawn regarding the defendant's intent, if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed" by the Court of Appeals (People v Bueno, 18 NY3d 160, 169 [2011] [internal quotation marks, citations, and brackets omitted]). Here, the jury could have rationally inferred that defendant intended to injure the child, because physical injury is the probable consequence of inflicting "blunt force trauma" on a young child. Consequently, the evidence of first-degree manslaughter was sufficient.

VII.

Procedurally, defendant contends that the failure of his trial attorneys to challenge the prospective juror who was unsure whether he would give more weight to a police officer's testimony amounted to ineffective assistance of counsel. He relies on People v Turner (5 NY3d 476 [2005]), and claims that trial counsel, though otherwise competent, committed "a single failing" that was "so egregious and prejudicial as to deprive [him] of his constitutional right" to the effective assistance of counsel (Turner, 5 NY3d at 480 [internal quotation marks omitted]; see also e.g. People v Brown, 17 NY3d 742, 743-744 [2011]).

It is well settled that "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations 406*406 for counsel's failure .... Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment" (People v Rivera, 71 NY2d 705, 709 [1988]). The burden is on the defendant to show that there was no legitimate explanation for defense counsel's alleged error. We must decide whether, "[v]iewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney" (People v Satterfield, 66 NY2d 796, 799 [1985]).

Defendant points to the fact that defense counsel said on the record that she was "mixed up" and "confused" about whether a prospective juror had been challenged, and he suggests that her failure to challenge therefore cannot have been a matter of strategy. However, the record shows that counsel was only fleetingly confused, in that she thought for a moment that the prospective juror had already been removed, and then quickly regained herself. Counsel then recalled that the prospective juror was one she wished to keep, even though she knew that he had said he was unsure whether he would apply a different standard for judging the credibility of a police officer's testimony, if it conflicted with civilian testimony.

Defendant also argues that there cannot be a legitimate explanation for failing to challenge a prospective juror who is not sure whether he would apply a different standard for the credibility of police officers. We disagree. A defense counsel may legitimately decide not to challenge a prospective juror in such circumstances because the prospective juror is attractive to the defense in other respects, which outweigh his or her willingness to attach more credibility to police officers' testimony when it directly contradicts civilian testimony. This is particularly likely in a case, such as this one, where there was no expectation of a conflict between the police officers' and civilians' testimony, such that defense counsel would seek to undermine police testimony. "The record does not reveal on what basis counsel might have concluded that" the prospective juror was a "desirable juror[] for the defense, and that further inquiry was unnecessary. In particular, counsel may have been influenced by the[] juror['s] demeanor, which is not reflected in the record" (People v Vilfort, 33 AD3d 368, 369 [1st Dept 2006]). Demeanor may include such entirely nonverbal cues as eye contact and posture. In addition, trial counsel may have considered the prospective juror to be beneficial to the defense on the basis of his 407*407 jury questionnaire. Importantly, the record does not show a substantial risk that the prospective juror would not properly discharge his responsibilities, nor does it cast doubt on his ability to be fair. In sum, defendant's ineffective assistance argument fails because he does not meet his burden of showing the absence of a legitimate explanation for the perceived error.

VIII.

Finally, defendant argues that County Court erred in denying his motion to suppress the clothing that was seized from him. He frames the argument in terms of ineffective assistance of counsel; County Court, he says, should have granted the motion on the basis that the attorney who consented to the seizure of defendant's clothing was ineffective. Defendant acknowledges our holding in People v Claudio (83 NY2d 76 [1993]) that, "except in most unusual circumstances ... the State is not charged with the responsibility of guaranteeing effective legal representation upon the entry of counsel at the preaccusatory, investigatory stage of a criminal matter, i.e., before the commencement of formal adversarial judicial criminal proceedings" (id. at 78), but urges us to overrule Claudio.

The present case does not require us to decide whether Claudio is still good law, because we agree with the Appellate Division that "[e]ven assuming arguendo, that the right to effective assistance of counsel attached prior to the seizure of the physical evidence in question and that suppression is the appropriate remedy where a seizure arises from ineffective assistance of counsel," defendant "failed to demonstrate the absence of a strategic explanation for that attorney's alleged shortcomings" (90 AD3d at 1550, quoting People v Carncross, 14 NY3d 319, 331 [2010] [ellipsis and brackets omitted]).

IX.

Accordingly, the order of the Appellate Division should be affirmed.

SMITH, J. (concurring).

I concur in the result the majority reaches, but not in its reasoning. I do not think this case fits with our depraved indifference jurisprudence as it has developed over the last decade. Rather, I think that a case like this—a severe beating that killed an infant—is a justified, narrow exception to the rule established by our recent cases that a depraved indifference murder conviction cannot be sustained unless a 408*408 jury could find, beyond a reasonable doubt, that the defendant was literally indifferent to whether the victim lived or died.

This is the first case since People v Sanchez (98 NY2d 373 [2002]) in which we have found the evidence sufficient to support a jury finding of depraved indifference to human life. In the interim, we have found insufficient evidence of depraved indifference in 17 cases,^[*] and have overruled Sanchez and People v Register (60 NY2d 270 [1983]) (see People v Feingold, 7 NY3d 288, 295-296 [2006]). We have decided in three recent cases that neither a brutal, fatal assault (People v Bussey, 19 NY3d 231 [2012]) nor a reckless failure to protect or get help for an abused child (People v Lewie, 17 NY3d 348 [2011]; People v Matos, 19 NY3d 470 [2012]) is proof of depraved indifference.

This case is different from those three because in Bussey the victim was an adult, and in Lewie and Matos the defendants were not the people who physically abused the children. I agree with the majority that these differences justify a difference in result. While Bussey, Lewie and Matos were guilty of "shocking behavior [which] in ordinary speech people might call ... `depraved'" (Lewie, 17 NY3d at 359), the depravity in a crime like this is of a different order. An assault against a young child is immeasurably worse than an assault against an adult, both because the child is so much more vulnerable and because the child could have done nothing to provoke the offense. And the offender who actually beats the child commits a much worse offense than one who only fails to prevent the beating or to forestall its consequences. If ever there was conduct

"so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another"

(People v Suarez, 6 NY3d 202, 211 [2005], quoting earlier cases), the conduct of this defendant is it.

409*409 Still, there is a problem. Under our recent cases, the depraved indifference statutes are not an invitation for juries and judges to make moral judgments about how bad the conduct was in each particular case. We have insisted on a narrow, literal reading of "depraved indifference":

"Our cases make clear that the word `indifference' is to be taken literally: `depraved indifference is best understood as an utter disregard for the value of human life—a willingness to act ... because one simply doesn't care whether grievous harm results or not'" (Lewie, 17 NY3d at 359, quoting earlier cases).

I find it hard to see how this defendant was any more indifferent to whether the victim lived or died than the defendant in Bussey was. Bussey establishes that we would not uphold a depraved indifference murder conviction on facts like the ones before us if the victim were an adult; yet the age of the victim hardly seems relevant to the question of whether the defendant was indifferent to the victim's fate. As the majority opinion shows, the strongest evidence of indifference in this case is in defendant's callous behavior in the hours between the assault and the child's death. But Matos establishes that we would not uphold the depraved indifference murder conviction of a defendant who reacted with equal callousness to child abuse that someone else had committed. I disagree with the heavy emphasis that the majority puts on defendant's post-assault behavior (cf. Suarez, 6 NY3d at 210 [depraved indifference should be decided "irrespective of what the actor does or does not do after inflicting the fatal injury"]). I think the evidence on that subject was relevant here, but I also think there was sufficient evidence without it to sustain the conviction. I would say that anyone who beats a baby to death in the way that this defendant did could be found to be a murderer, even if the assault was immediately followed by tears of remorse.

I conclude that the extraordinary evil of this kind of crime— severe, fatal abuse of a young child—warrants an exception to the rule of Lewie that "the word `indifference' is to be taken literally." I am fortified in this conclusion by the legislature's recognition in the text of the murder statute that child abuse is in a class by itself. The broader depraved indifference murder statute, Penal Law § 125.25 (2), applies to a person who "[u]nder circumstances evincing a depraved indifference to human life ... recklessly engages in conduct which creates a 410*410 grave risk of death to another person." But this defendant was prosecuted under Penal Law § 125.25 (4), applicable to one who "[u]nder circumstances evincing a depraved indifference to human life, and being eighteen years old or more ... recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old" (emphasis added). Thus the legislature clearly intended to make child abusers punishable for murder when their victims died, even where the risk that they recklessly created was a risk of something less than death; the idea that "depraved indifference" can only exist when a defendant does not care whether the victim lives or dies seems incompatible with that intention.

I also find support for the application of the statute to this case in our decision in Suarez. There, we said that "[t]wo fact patterns have recurred" under the depraved indifference murder statute (6 NY3d at 212). One of those consists of defendants who engage "in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (id.). Defendant argues here that his case does not fit this category because his brutality was not "prolonged," but the argument misses the point; the Suarez categories are not the only possible kinds of depraved indifference murder. More relevant is Suarez's recognition that maltreatment of a "particularly vulnerable victim" is an important factor in deciding whether the statute applies. Logically, the vulnerability of the victim may not justify an inference that the perpetrator was literally indifferent between life and death; but the moral enormity of a crime against such a victim does justify a less literal reading of the statute in this narrow class of cases.

Order affirmed.