[203] Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant in the first above-entitled action.

[204] Robert T. Johnson, District Attorney, Bronx (Jonathan Zucker, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent in the first above-entitled action.

Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant in the second above-entitled action.

Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Anne C. Feigus of counsel), for respondent in the second above-entitled action.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and R.S. SMITH concur in per curiam opinion; Judges G.B. SMITH, ROSENBLATT and R.S. SMITH concur in a separate concurring opinion; Judge READ concurs in result in a separate opinion; Judge GRAFFEO dissents and votes to affirm in another opinion.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT and R.S. SMITH concur in per curiam opinion; Judges G.B. SMITH, ROSENBLATT and R.S. SMITH concur in a separate concurring opinion; Judge GRAFFEO concurs in result in a separate opinion; Judge READ concurs in result in another opinion. [231]

[205] OPINION OF THE COURT

Per Curiam.

These two appeals call upon the Court, once again, to differentiate depraved indifference murder from other categories of homicide. We begin with the facts.

People v Suarez. On February 22, 2000, in their Bronx apartment, defendant Santos Suarez stabbed his girlfriend, Jovanna Gonzalez, three times — once in the throat, once in the chest and once in the abdomen. Suarez fled without summoning assistance, and Gonzalez eventually bled to death.

When Suarez was arrested six days later in Rhode Island, he told police that he had slapped Gonzalez in the face during an argument, and that she had then lunged at him with a knife, scratching him in the chest. Suarez wrested the knife away and, "outraged" that Gonzalez had called for her son, lunged back at her. According to Suarez's account, when he pulled back, he saw that Gonzalez was bleeding from the neck. He claimed, however, that he could not remember what happened next. Suarez was indicted for intentional murder, depraved indifference murder, intentional manslaughter and criminal possession of a weapon in the fourth degree. At his trial, he testified that he never intended to kill Gonzalez. Charged on the defense of justification and the affirmative defense of extreme emotional disturbance, the jury acquitted Suarez of intentional murder but convicted him of depraved indifference murder. The Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

People v McPherson. On February 12, 2000, defendant Trisha McPherson went to the Brooklyn home of Kirk Wright, her former boyfriend and the father of her child. According to McPherson, [206] after she and Wright argued over child support, Wright pushed her. When Wright then raised his hand as if to hit her, McPherson unzipped her purse, pulled out a knife, opened the knife and swung it at Wright, stabbing him once in the chest. When she saw that Wright was bleeding, McPherson immediately called 911 and requested an ambulance. Before the ambulance arrived, McPherson left the scene. Wright was transported to a hospital, where he bled to death from the stab wound. At her nonjury trial for depraved indifference murder, first-degree manslaughter and fourth-degree weapon possession, McPherson testified that she had been a long-suffering victim of domestic violence at the hands of Wright, and that she was acting in self-defense when she killed him. The court, however, rejected her justification defense and found her guilty of depraved indifference murder. Again the Appellate Division affirmed defendant's conviction, holding that the evidence was legally sufficient to establish guilt of depraved indifference murder.

In each case — McPherson by a unanimous court, Suarez by a six-Judge majority — we conclude that there was no depraved indifference murder, and therefore reverse both convictions.

The Statutory Categories of Homicide

With the adoption of the revised Penal Law in 1965, the Legislature codified five basic categories of homicide, which have remained essentially unchanged since that time: intentional murder in the second degree (Penal Law § 125.25 [1]),^[1] depraved indifference murder in the second degree (Penal Law § 125.25 [2]), intentional manslaughter in the first degree (Penal Law § 125.20 [1]), reckless manslaughter in the second degree (Penal Law § 125.15 [1]) and criminally negligent homicide (Penal Law § 125.10). Although the culpable acts in each case culminate in the same tragic result — the death of another — these crimes, each necessarily meant to proscribe different conduct, are distinguished by the level of blameworthiness attributable to the actor who commits them. Intentional murder and depraved indifference murder are equivalent in that both are classified at the highest grade and carry the same penalty; other categories of homicide, lesser in grade, are punished less severely. In so classifying the range of unlawful killings [207] condemned by the criminal law, the Legislature has enacted a statutory system in which each category of homicide is defined uniquely and distinctly from every other, thus ensuring that a killer's punishment is commensurate with the degree of criminal culpability established by the Penal Law.

What precisely distinguishes depraved indifference murder from other homicides has of late generated significant discussion,^[2] as the number of indictments for depraved indifference murder — often charged in conjunction with intentional murder — has increased dramatically. Whether because jurors conclude that anyone who would intentionally take a life is depraved, or because they mistakenly believe that depraved indifference murder is a lesser offense than intentional murder and are reluctant to convict of the "most serious" charge, the availability of a depraved indifference murder count has led juries to convict of that charge even though the evidence did not support it (see e.g. People v Hafeez, 100 NY2d 253 [2003]; People v Gonzalez, 1 NY3d 464 [2004]; People v Payne, 3 NY3d 266 [2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]).

The proliferation of the use of depraved indifference murder as a fallback theory under which to charge intentional killers reflects a fundamental misunderstanding of the depraved indifference murder statute. "[D]epraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York" (Payne, 3 NY3d at 270). Rather, because the statute requires "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25 [2]), depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder. The cases now before us, two additional examples of the misapplication of the depraved indifference murder statute, compel us — for now and for the future — to revisit what is unique and distinctive about [208] that crime as defined by the Legislature. The purpose here is not to take anything away from juries (see concurring/dissenting op at 227) — a valued and essential element of our justice system — but rather to provide the guidance that will enable prosecutors, juries, trial courts and reviewing courts to function without risk of reversal.

Distinction from Intentional Murder

According to Penal Law § 125.25 (2), a person commits depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

That taking the life of another can itself, in a sense, be considered a "depraved" act does not, however, turn every killing into depraved indifference murder as proscribed by the Penal Law. We thus begin by once again underscoring that the "use of a weapon can never result in depraved indifference murder when . . . there is a manifest intent to kill" (Payne, 3 NY3d at 271 [2004] [point-blank shooting insufficient to establish depraved indifference murder]). That is so because "[i]ndifference to the victim's life . . . contrasts with the intent to take it" (id. at 270). The People concede this proposition, but seek to distinguish Suarez from Payne, and from Gonzalez (1 NY3d 464 [2004] [10 shots fired at close range]), because in those cases the defendant used a gun, whereas here he used a knife. Thus, despite Payne's plain statement that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272 [emphasis added]), the People maintain that a jury could reasonably have concluded that Suarez's infliction of stab wounds to the throat, chest and abdomen of his victim reflected not an intent to kill but merely an intent to seriously injure her.

If the prosecution meant by this nothing more than that the evidence would have supported defendant's conviction for intentional murder — despite the jury's acquittal of that charge — as well as his conviction for intentional manslaughter in the first degree, we would agree. However, the People contend further that the evidence here also established depraved indifference murder, on the theory that Suarez's actions in stabbing the victim created a grave risk of her death — a risk that he consciously disregarded when he failed to seek medical assistance for the injuries he intentionally inflicted and instead left her there to die.

[209] "That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder" (Payne, 3 NY3d at 270; see also People v Hafeez, 100 NY2d 253, 259 [2003] [where defendant's conscious objective was to "intentionally injur(e)" the victim, there was "no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder"]).

Indeed, the flaw in the People's argument is perhaps best demonstrated by comparing Suarez with McPherson. In Suarez, the People maintain that depraved indifference is established by the defendant's intentional infliction of a mortal wound, followed by his flight from the scene of the killing. Because the defendant left the bleeding victim still alive without "finishing her off," we are told, he must not have intended her death (which in turn exempts the case from the "manifest intent to kill" rule of Payne). But since he did nothing to save her, his actions, we are further told, reflected a depraved indifference to her life.^[3] In McPherson, by contrast, we are told that the defendant's conduct in calling for an ambulance after discovering that her victim had been wounded in itself reflected depraved indifference. For, the argument goes, her very actions in summoning assistance show that she did not intend for the victim to die. That being so, her crime (the People assert) must have been one of indifference, not of intentionality; and since the risk of death created by a chest wound is a grave one, the depraved indifference murder statute is satisfied.

When the People can make, and courts can accept, arguments in which both the rendering of assistance and the failure to render assistance serve to establish depraved indifference, there must be a fundamental misapprehension of the concept of the crime.

[210] The People's argument is flawed on two grounds. First, a killing (whether intentional or unintentional) is not transformed into depraved indifference murder simply because the killer does not summon aid for the victim. Otherwise, homicides would be routinely and improperly converted into depraved indifference murders whenever — as is often the case — the killer leaves the scene. Even more obviously, a killing does not become a depraved indifference murder merely because the killer summons aid and thus reveals an intent that the victim not die. Surely, a killer does not commit depraved indifference murder just because he or she wants the victim to live. Second, and irrespective of what the actor does or does not do after inflicting the fatal injury, depraved indifference murder is not made out unless the core statutory requirement of depraved indifference is established.

"Depraved indifference murder does not mean an extremely, even heinously, intentional killing. . . .

"When a defendant's conscious objective is to cause death, the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant. Nor can the wanton disregard for human life inherent in every intentional homicide convert such a killing"

into depraved indifference murder (Gonzalez, 1 NY3d at 468).

Distinction from Intentional Manslaughter

Historically, depraved indifference murder had no application at all to one-on-one killings (see generally Bernard E. Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417 [1974]). Accordingly, in Darry v People (10 NY 120 [1854]), this Court held that a conviction for "depraved mind"^[4] murder required conduct that endangered many people indiscriminately, reflecting cases in which the defendant did not wish to kill or injure any particular individual, but had no care for whether the life of any particular person was lost or not.

Since the enactment of the revised Penal Law, however, we have recognized that in rare circumstances, depraved indifference murder can also be found in certain unintentional killings involving only a single individual. These limited cases are those [211] in which — although the intent to kill is absent — the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. Such cases will arise only when the acts of the defendant are "marked by uncommon brutality — coupled not with an intent to kill . . . but with depraved indifference to the victim's plight" (Payne, 3 NY3d at 271). To constitute depraved indifference, the defendant's

"conduct must be `"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 Russell, 91 NY2d 280, 287-288 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]).

The vast majority of killings simply do not meet this standard. They are suitably punished by statutes defining intentional murder or manslaughter in the first or second degree or criminally negligent homicide.

Depraved indifference murder is not a lesser degree of intentional murder.^[5] Moreover, someone who intends to cause serious physical injury does not commit depraved indifference murder because the intended victim dies. By definition, "[s]erious physical injury" includes injury "which creates a substantial risk of death, or which causes death" (Penal Law § 10.00 [10]). Thus, one who acts with the conscious intent to cause serious injury, and who succeeds in doing so, is guilty only of manslaughter in the first degree. Otherwise, every intentional manslaughter would also establish depraved indifference murder — a result plainly at odds with the discrete classifications set forth in the statute. Since a defendant who intends to injure or kill a particular person cannot generally be said to be "indifferent" — depravedly or otherwise — to the fate of that person, we underscore what we said in Payne: "a one-on-one shooting or [212] knifing (or similar killing) can almost never qualify as depraved indifference murder" (3 NY3d at 272).^[6]

A defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances. Two fact patterns have recurred over the past four decades of experience under the revised Penal Law. First, when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and vulnerable victim in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's mortal plight — arising from a situation created by the defendant — properly establishes depraved indifference murder. Thus, in People v Kibbe (35 NY2d 407 [1974]), the defendants were properly convicted of depraved indifference murder after they robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in subfreezing temperatures, where he was struck by a passing truck and killed. Similarly, in People v Mills (1 NY3d 269 [2003]), the defendant, without intent to harm or kill his victim, pushed a young boy into the water, watched him submerge without resurfacing (either because the boy had accidentally struck his head or because of an epileptic seizure), falsely informed his friends in response to their cries to help the victim that he was in fact swimming away, and abandoned the drowning boy to die.

Second, although we have reversed depraved indifference murder convictions in most cases involving isolated attacks, we have held that the crime is nevertheless established when a defendant — acting with a conscious objective not to kill but to harm — engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim. When a defendant's actions serve to intensify or prolong a victim's suffering, they bespeak a level of cruelty that establishes [213] the depravity mandated by statute. Thus, in People v Poplis (30 NY2d 85 [1972]), the defendant committed depraved indifference murder when, albeit without any intent to kill, he caused the death of a 3½-year-old infant as a result of continually beating the child over a period of five days (see also People v Best, 85 NY2d 826 [1995], affg 202 AD2d 1015 [4th Dept 1994] [defendant's repeated severe beatings of her nine-year-old son caused large open wounds resulting in blood poisoning and ultimately death by asphyxiation; depraved indifference murder established since defendant continued beatings though aware of child's condition]).

Both of these categories of cases reflect wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator's inexcusable acts. We have also upheld convictions for depraved indifference murder in a few other extraordinary cases involving conduct that endangered only one person, where the evidence showed not just recklessness, but depraved indifference to human life (see e.g. People v Roe, 74 NY2d 20 [1989] [defendant fired at point-blank range without knowing whether the bullet was a "live" or "dummy" round]). Where comparable facts are not shown, however, a jury is foreclosed, as a matter of law, from considering a depraved indifference murder charge whenever death is the result of a one-on-one confrontation.^[7]

Distinction from Reckless Manslaughter

Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Otherwise, manslaughter in the second degree would routinely and automatically become depraved indifference murder inasmuch as the victim (who was, after all, killed) was necessarily exposed to a grave or substantial risk of death. The critical [214] statutory language that separates second-degree manslaughter from depraved indifference murder is the defendant's underlying depraved indifference. "[C]ircumstances evincing a depraved indifference to human life" are not established by recklessness coupled only with actions that carry even an inevitable risk of death.

We therefore make clear that depraved indifference 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. Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is "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 render the actor as culpable as one whose conscious objective is to kill (Russell, 91 NY2d at 287 [internal quotation marks omitted]).^[8] Quintessential examples are firing into a crowd (see e.g. People v Jernatowski, 238 NY 188 [1924]); driving an automobile along a crowded sidewalk at high speed (see People v Gomez, 65 NY2d 9 [1985]); 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.

Oftentimes it will not be easy to determine whether a defendant's conscious objective was to kill or merely to injure a victim. But those are the hard choices to be weighed by the trier of fact. Depraved indifference murder was never meant as a fallback crime enabling courts and juries to avoid making these difficult decisions. We therefore make clear that the statutory provision that a defendant act "[u]nder circumstances evincing a depraved indifference to human life" constitutes an additional requirement of the crime — beyond mere recklessness and risk — which in turn comprises both depravity and indifference, and that a jury considering a charge of depraved indifference murder should be so instructed (see People v Register, 60 NY2d 270, 276 [1983] [depraved indifference murder statute "requires in [215] addition not only that the conduct which results in death present a grave risk of death but that it also occur `(u)nder circumstances evincing a depraved indifference to human life'"]).

We depart slightly from the Register formulation, however, in that we make clear that the additional requirement of depraved indifference has meaning independent of the gravity of the risk. As the present cases illustrate, to focus, as the dissent does, on only the degree of risk presented by a defendant's reckless actions gives insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes. For with the critical inquiry thus cast, it becomes difficult for trial and appellate courts to determine as a matter of law whether given conduct has established a very substantial or merely substantial risk of death, particularly because this determination must, by definition, always be made with the hindsight that the endangered victim did in fact die. That being so, it is hard for a court exercising meaningful review ever to deny that the jury could reasonably have concluded that the defendant's conduct must have created a very substantial (i.e., grave) risk of death, since it actually succeeded in causing death.

Although the dissent proclaims its faith in the ability of jurors to make the fine distinction between "a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction" (dissenting/concurring op at 227), it also concludes that there was no rational view of the evidence to support the conclusion that McPherson demonstrated a depraved indifference to the victim's life. But of course, the trial judge found otherwise, and was affirmed by the Appellate Division.

When depraved indifference murder is properly understood, "twin-count" indictments — charging both intentional homicide and depraved indifference murder — should be rare. Twin-count submissions to a jury, even rarer. For by the time the proof has been presented, it should be obvious in most cases whether or not the evidence establishes "an intentional [killing] or no other" (People v Wall, 29 NY2d 863, 864 [1971]). Thus, where twin-count indictments are lodged, trial courts should presume "that the defendant's conduct falls within only one category of murder and, unless compelling evidence is presented to the contrary, dismiss the count that is least appropriate to the facts" (Abramovsky and Edelstein, 55 Syracuse L Rev at 491).

In sum, whether a small, finite or rare category, depraved indifference murder should not be routinely charged to a jury. [216] Focus on the three statutory factors that distinguish depraved indifference murder — "circumstances evincing a depraved indifference to human life," recklessness and "a grave risk of death to another person" — should again make clear that the statute properly applies only to the unusual case.

Application of the Law to the Facts

In Suarez, defendant's acts in stabbing his victim in the throat, chest and abdomen did not, as a matter of law, constitute depraved indifference murder. Whether he intended to kill her or merely to cause her serious injury — and either of these findings, supported by sufficient evidence, might have been properly made by the jury — defendant's actions in no way reflected a depraved indifference to her fate.^[9] In McPherson, defendant's conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder. We reject defendant McPherson's further contention that she was denied the effective assistance of counsel at her trial.

Remittitur

In their briefs to this Court, the parties focused their arguments on the merits, and not on the question of remedy in the event of a reversal. Inasmuch as the Appellate Division, in affirming in each case, had no occasion to address the significant legal arguments bearing on the appropriate remedy, we remit to the Appellate Division for full briefing and consideration and for that Court to exercise its corrective action powers under CPL 470.20.

[217] Accordingly, in each case, the order of the Appellate Division affirming the judgment of conviction and sentence should be reversed and the case remitted to that Court for further proceedings in accordance with this opinion. Additionally, in McPherson, the order of the Appellate Division affirming the denial of defendant's CPL 440.10 motion should be affirmed.

G.B. SMITH, ROSENBLATT and R.S. SMITH, JJ. (concurring).

We are full participants in the Court's per curiam decision, but write separately to add some views of our own.

The Court's earlier decisions in People v Register (60 NY2d 270 [1983]) and in People v Sanchez (98 NY2d 373 [2002]), which was based in significant part on Register, gave too expansive a definition to depraved indifference murder. The Court has properly limited the force of those decisions in People v Hafeez (100 NY2d 253 [2003]), People v Gonzalez (1 NY3d 464 [2004]) and People v Payne (3 NY3d 266 [2004]), and has limited them even further today. We would take a step beyond the per curiam opinion and say what the Court stops short of saying: that Register and Sanchez should be explicitly overruled.

Notwithstanding this difference, we welcome the Court's return to a more restrictive, and we believe more sound, interpretation of the depraved indifference murder statute. But there is, as all members of this Court are painfully aware, a price to be paid for this needed revision in the Court's approach. At least in Gonzalez, Payne and Suarez, defendants' convictions have been reversed despite — indeed, in part because of — strong evidence that they intended to kill their victims. But juries acquitted Gonzalez, Payne and Suarez of intentional murder, and we think the Court has rightly concluded that a correct interpretation of the depraved indifference murder statute does not permit their convictions of that crime to stand.

In overturning convictions in such cases, the Court, in our view, performs an unpleasant but necessary duty, and by doing so will make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime. We expect, or at least hope, that the rule embodied in this and our other recent decisions will be applied prospectively, and that any impact on already completed prosecutions can be avoided. Defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive [218] candidates for collateral relief after their convictions have become final.^[1]

A defendant who commits intentional murder should be convicted and punished for that crime, not for a crime that he or she did not commit and that a jury may mistakenly believe is less serious. Where intentional murder is not made out, the lesser degrees of homicide, including first and second degree manslaughter, can fully serve the function they served for decades before the relatively recent, seismic expansion in depraved indifference murder prosecutions.^[2] Continuing to countenance the routine use of depraved indifference murder charges, as the dissent would have us do, will ultimately cause more trouble than the course the Court has taken today.

Further, and contrary to the dissent, the Court does not hold that a person who stabs another with a knife may never be guilty of depraved indifference murder. It is better to say "almost never," as the Court does. Though we have held that a point-blank shooting may almost never qualify as depraved indifference murder, we have recognized that a variation on Russian roulette (a point-blank shooting) may be an exception (see People v Roe, 74 NY2d 20 [1989]). Similarly, if one person kills another by throwing a knife to see how close it can get to the victim's head, a depraved indifference murder charge may be justified. But law school-type hypotheticals are not the stuff of the day-to-day criminal courts; and the per curiam opinion, by saying "almost never," avoids taking an absolutist position that would wholly foreclose depraved indifference murder, in a one-on-one situation, by the use of a knife or any other means.

We appreciate our dissenting colleague's desire to affirm in Suarez and reverse in McPherson. But, as the per curiam opinion demonstrates, to reach that result while applying Register and Sanchez requires overlooking the fact that both [219] defendants created at least a grave risk of death by fatally stabbing their victims in the chest. It may well be that justice would call for convicting Suarez of murder and McPherson of manslaughter, but the degree of risk created is not a sufficient basis for distinguishing between cases like these. The distinction can be properly made only by requiring that the prosecution, to obtain a murder conviction, must prove intent to kill or, in the rare cases where it is present, depraved indifference to human life. That is what the Legislature plainly intended, and we welcome the Court's decision today to adhere to that original intention.

READ, J. (concurring).

On constraint of our decision in People v Payne (3 NY3d 266 [2004]), I concur with the result in People v Suarez. On constraint of our decisions in People v Hafeez (100 NY2d 253 [2003]) and Payne, I concur with the result in People v McPherson. For all the reasons expressed by Judge Graffeo, I find the majority's rationale for deviating from our longstanding precedent and reinterpreting Penal Law article 125 to be unconvincing. As Judge Graffeo further points out, our jurisprudence in this area now raises a significant public policy issue that only the Legislature can resolve.

GRAFFEO, J. (concurring in McPherson and dissenting in Suarez).

The majority concludes that a person who stabs someone with a knife cannot act with "a depraved indifference to human life" (Penal Law § 125.25 [2]). To reach this conclusion and limit the applicability of the depraved indifference murder statute, the majority employs reasoning that is inconsistent with the language of the statute as well as the carefully drawn legislative distinctions between intentional murder, depraved indifference murder and manslaughter. Its rationale deviates from our precedent in People v Sanchez (98 NY2d 373 [2002]), People v Register (60 NY2d 270 [1983]) and other cases decided by this Court. Today's decision also fails to recognize and respect the ability of our jury system to reliably differentiate between different types of homicide. For these reasons, I respectfully disagree with the majority's interpretation of the depraved indifference murder statute.

Depraved Indifference Murder

The Legislature codified distinct categories of homicide in the Penal Law that became effective in 1967. Murder in the second degree is committed by intentionally causing the death of another [220] (see Penal Law § 125.25 [1]). An intentional killing may also be classified as first-degree murder if certain aggravating circumstances concerning the crime, the victim or the defendant are present (see Penal Law § 125.27 [1] [a]). A murder is intentional when the accused acts with the "conscious objective" to kill (Penal Law § 15.05 [1]). A lesser offense, manslaughter in the first degree, is committed when a person who intended to cause serious physical injury, causes death (see Penal Law § 125.20 [1]).

Recognizing that not all criminal conduct is intentional, the Legislature created several categories of nonintentional homicide, reflecting differing degrees of criminal culpability. A distinct type of murder, referred to as "depraved mind murder," had previously been codified in New York, but the earlier statute had been interpreted to apply only to deaths that occurred when a defendant's conduct had endangered more than one person and was not directed at harming any particular person (see Darry v People, 10 NY 120, 147 [1854]). In order to expand the reach of the offense, the Legislature redesignated this category of homicide as "depraved indifference murder," classified it as second-degree murder and provided that the crime is committed when a person, "[u]nder circumstances evincing a depraved indifference to human life, [] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). To kill recklessly, as opposed to intentionally, one must be "aware of and consciously disregard[]" a risk that conduct will result in death (Penal Law § 15.05 [3]). Both of these forms of second-degree murder — intentional and depraved indifference — carry the same penalties and are class A-I felonies. This underscores the Legislature's desire to enact a category of homicide that, although not the result of a conscious intent to kill, is the result of circumstances, coupled with a grave disregard for life, comparable in severity and blameworthiness to intentional murder.^[1]

Another category of homicide, manslaughter in the second degree, a crime of lesser grade and severity, is also premised on reckless conduct (see Penal Law § 125.15 [1]). There is, however, a critical difference between second-degree manslaughter and depraved indifference murder. Depraved indifference murder requires that the actor create a "grave" risk of death (Penal [221] Law § 125.25 [2]), whereas the manslaughter statute employs a lesser, "substantial" risk of death standard (Penal Law § 15.05 [3]). When a jury concludes that the lesser degree of risk was created and convicts a defendant of manslaughter, a class C felony, the sentencing options are far less onerous than the penalties authorized for a depraved indifference murder conviction (see generally Penal Law art 70).

Thus, in delineating between these types of homicide, the Legislature clearly indicated that the important factors that distinguish these crimes are whether a person acts intentionally with respect to a particular result (for intentional murder and first-degree manslaughter) or recklessly with regard to whether death will result (for depraved indifference and second-degree manslaughter), and if the person was reckless, whether that conduct created a grave risk of death (for depraved indifference) as opposed to only a substantial risk of death (for manslaughter). The determination of the accused's state of mind and the degree of risk created by his or her conduct has traditionally and almost exclusively been reserved to a jury of the accused's peers.

This Court on a number of occasions has discussed the meaning of the depraved indifference requirement in the second-degree murder statute. In People v Register, we explained that depraved indifference "refers to neither the mens rea nor the actus reus" of the crime (60 NY2d at 276). Rather, it is "a definition of the factual setting in which the risk creating conduct must occur" (id.). This is consistent with the carefully chosen statutory condition that depraved indifference second-degree murder is available only in "circumstances evincing a depraved indifference to human life" (Penal Law § 125.25 [2] [emphasis added]). The Legislature inserted the word "circumstances" for a reason. As we emphasized in People v Sanchez, the "requirement of circumstances evincing a depraved indifference to human life . . . focuses not on the subjective intent of the defendant, `but rather upon an objective assessment of the degree of risk presented by [the] defendant's reckless conduct'" (98 NY2d at 379-380, quoting Register, 60 NY2d at 277). And it is the "exceptionally high, unjustified risk of death [that] constitute[s] the primary means by which the Legislature differentiated between the reckless state of mind sufficient to establish the mental culpability of manslaughter and the extreme recklessness of [depraved indifference] murder" (Sanchez, 98 NY2d at 380).

[222] From the viewpoint of statutory analysis, the majority's restrictive application of depraved indifference murder is inconsistent with the specific language of Penal Law § 125.25 (2) and our long established precedent construing that statute. According to the majority, the depraved indifference provision allows an individual to be prosecuted for second-degree murder if that person recklessly engages in conduct that creates a grave risk of death to another person and thereby causes the death of another person in the following situations: (1) where only one individual is put at risk of death and the accused "abandons [the] helpless and vulnerable victim in circumstances where the victim is highly likely to die" (majority op at 212) or "engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" (majority op at 212) and (2) where more than one person is put at risk of death, regardless of the "helpless[ness]" and "vulnerab[ility]" of the victim (majority op at 212), or whether the defendant "engages in torture or a brutal, prolonged and ultimately fatal course of conduct" (majority op at 212).

This limited construction of the statute is unjustified. The language of Penal Law § 125.25 (2) does not remotely suggest that the extent of helplessness and vulnerability of the victim, or the length and nature of an attack, are prerequisites to a determination of depraved indifference. And the statute cannot plausibly be read to suggest that the Legislature intended the phrase "depraved indifference" to carry one definition in the context of a one-on-one altercation, yet mean something completely different when more than one person is endangered by the conduct of another. Furthermore, the legislative amendments to the second-degree murder statute in 1967 were meant to broaden the application of depraved indifference murder, not restrict it to cases like shooting into a crowd, opening a lion's cage or detonating a bomb in a public place, examples cited by the majority.

Aside from the problems inherent in the majority's inability to reconcile its interpretation with the plain language of the depraved indifference murder statute, today's decision signals a fundamental shift in our homicide jurisprudence. Although it purports to maintain the objective circumstances rule (see majority op at 214-215), the majority acknowledges that it is departing somewhat from the standard articulated in Register (see majority op at 215). Rather than focusing on the grave risk of death, the majority speaks in terms of the "wickedness, evil or [223] inhumanity" of the killer (majority op at 214). A majority of our Court clearly rejected this type of heightened mens rea just three years ago in Sanchez.

"Nowhere in the[] modern formulations of depraved mind or depraved indifference murder is there a requirement that, in addition to the extremely reckless nature of the homicidal conduct, there must also be proof in some other sense of an `uncommonly evil and morally perverse frame of mind'" (Sanchez, 98 NY2d at 383).

We also noted that to adopt the position now taken by the majority — to add "further mens rea elements or substantive requirements of subjectively defined characteristics of the defendant's acts" (id. at 384) — "will only confuse rather than clarify" the distinction between intentional and depraved indifference murder (id.). And in the two cases that followed Sanchez, People v Hafeez (100 NY2d 253 [2003]) and People v Gonzalez (1 NY3d 464 [2004]), we continued to apply the objective circumstances rule to determine whether there was legally sufficient evidence of depraved indifference murder, and concluded that the planned, premeditated nature of those two killings was consistent only with an intent to kill, not a reckless state of mind.

In this Court's most recent depraved indifference decision, People v Payne (3 NY3d 266 [2004]), a majority held that the point-blank shooting of a person in the chest with a shotgun should not be classified as depraved indifference murder because "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder" (id. at 272), regardless of other objective circumstances that may be present in a particular case, since murders of this nature demonstrate an inherent "manifest intent to kill" that does not constitute an indifference to human life (id. at 271). In my view, both Payne and the rule enunciated by the majority here conflict with our statement in Sanchez that "purposeful homicide itself is the ultimate manifestation of indifference to the value of human life" (98 NY2d at 384). Put another way, we recognized in Sanchez that there can be an act that creates "such a high risk of death that it could also lead to the conclusion that it was intentional[, which] supports rather than detracts from characterizing it as evincing depraved indifference to human [224] life" (id.).^[2] In fact, in Sanchez, where the defendant unjustifiably shot another person at close range in the chest, we affirmed the depraved indifference murder conviction precisely because "the likelihood of causing death . . . was so obviously severe that it evinced a depraved indifference to human life" (id.).^[3]

The majority attempts to reconcile its decision with the principles articulated in Sanchez by stating that the depraved indifference murder conviction in that case was upheld only "because `others were endangered'" (majority op at 213 n 7, quoting People v Payne, 3 NY3d at 272). But the Sanchez opinion neither relied on danger to multiple individuals as a decisive factor supporting a finding of depraved indifference, nor suggested that such a fact was crucial to its reasoning. To perpetuate this thin distinction further confuses the state of the law in New York.

I expect that the impact of the majority's decision will not be limited to undermining the principles espoused in Register and Sanchez. For example, in People v Roe (74 NY2d 20 [1989]) we concluded that the death of the victim, who was shot during a game of "Polish roulette," was properly classified as depraved indifference murder. Roe had loaded a shotgun with a combination of live and dummy shells, aimed it at the victim and pulled the trigger not knowing which type of round had been chambered. In that one-on-one, close-range shooting, the defendant neither "abandon[ed] a helpless and vulnerable victim" (majority op at 212) nor engaged in a "prolonged and ultimately fatal course of conduct" (majority op at 212), yet we nevertheless upheld the conviction for depraved indifference murder. Although the majority indicates that Roe was properly convicted of depraved indifference murder because it was "extraordinary" (majority op at 213), the majority does not explain how or why that is so in light of the new limitations imposed on depraved indifference murder.

[225] There are other troubling ramifications of this ruling that will not be limited to the second-degree murder statute. The crimes of assault in the first degree and reckless endangerment in the first degree also require that the defendant, "[u]nder circumstances evincing a depraved indifference to human life, [] recklessly engage[] in conduct which creates a grave risk of death to another person" (Penal Law § 120.10 [3]; see Penal Law § 120.25). Presumably, the majority's new interpretation of "depraved indifference" in the context of second-degree murder will apply with equal force to these two offenses since identically worded phrases in the same chapter of laws are usually accorded the same meaning. In light of this assumption, substantial case law from this Court will have dubious precedential value, including cases where we concluded that the requirement of "depraved indifference" is satisfied when a single gunshot was fired at point-blank range into the victim's temple (see People v Tuck, 87 NY2d 828 [1995]), a loaded and cocked handgun was placed against the temple but was not fired (see People v Chrysler, 85 NY2d 413 [1995]) and the victim was beaten and had a metal object plunged into his spinal cord (see People v Lynch, 95 NY2d 243 [2000]). Despite the fact that these circumstances do not fit into either of the two categories of "one-on-one" depraved indifference that the majority identifies (the defendants neither "abandon[ed] a helpless and vulnerable victim in circumstances where the victim is highly likely to die" [majority op at 212] nor "engage[d] in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim" [majority op at 212]) before today it was generally accepted that juries could consider the circumstances surrounding such conduct in evaluating the requirements of depraved indifference.^[4]

The majority's primary justification for altering our approach to depraved indifference murder centers on a concern that prosecutors and juries have been conflating this crime with intentional murder in the second degree. Contrary to the majority's belief, recognition of the long-standing rule of law expressed in Sanchez and Register does not convert "`every homicide, particularly intentional ones . . . into depraved indifference [226] murder'" (majority op at 209, quoting People v Payne, 3 NY3d at 270). There is a readily understandable distinction between intentional and depraved indifference murders — the killer's state of mind. As we have recognized, a person can act intentionally by having the conscious objective to cause death, or recklessly by disregarding a known risk of death, but cannot act with both mental states simultaneously with regard to the same result (see People v Trappier, 87 NY2d 55, 58-59 [1995]; People v Gallagher, 69 NY2d 525, 529 [1987]). Thus, simultaneous convictions for both intentional murder and depraved indifference murder cannot stand. But it does not follow that both counts may not be submitted to a jury in the alternative, with the jury to decide which offense, if any, occurred. Since direct evidence of the inner workings of a person's mind is often unavailable, the determination of the actual mens rea of a killer has traditionally remained in most situations a question of fact for the jury based on all the evidence and the entire circumstances (see People v Smith, 79 NY2d 309, 315 [1992]). The majority effectively takes that decision away from the jury, requiring a judge to preemptively choose between these alternative states of mind, even where it is the defendant who raises a factual dispute concerning mens rea by asserting that he or she did not intend to kill.

Intentional and depraved indifference murder are also distinguishable because once the jury determines that a homicide was committed purposefully, "the depravity of the circumstances under which the intentional homicide is committed is simply irrelevant" (People v Gonzalez, 1 NY3d at 468). This is so because an intentional killing is, by its very nature, "`"wanton . . . deficient in [] moral sense . . . [and] devoid of regard of the life or lives of others"'" (People v Russell, 91 NY2d 280, 287 [1998], quoting People v Fenner, 61 NY2d 971, 973 [1984]). It is only when a jury determines that a defendant did not consciously intend to cause death, but acted recklessly, that the jury must further decide whether the objective circumstances of the crime evince a depraved indifference to human life that "equals in blameworthiness intentional conduct purposefully designed to cause death" (CJI 2d [NY] Penal Law § 125.25 [2] ["Depraved Indifference Murder and Reckless Manslaughter Explained"] [revised Aug. 2, 2004]). The purpose of this inquiry is not to differentiate between intentional and depraved indifference murder but to decide whether the defendant created such a grave, "exceptionally high" risk of death that murder, as opposed to [227] manslaughter, has been committed (People v Sanchez, 98 NY2d at 380; see People v Register, 60 NY2d at 279).

Certainly depraved indifference murder should not be used as a "fallback crime" by prosecutors or juries (majority op at 214). As the distinctions between the intentional murder and depraved indifference murder provisions clearly indicate, this was not the intent of the Legislature and, therefore, is not what courts should charge juries as the law of this State. Rather, depraved indifference murder is a viable, morally equivalent crime, equal in both classification and severity of punishment to intentional murder, yet sufficiently distinguishable both legally and factually. It should be charged and considered by the jury when the facts, as viewed in the light most favorable to the People, could permit a rational jury to conclude that a defendant acted recklessly with a depraved indifference to life.

To presume that conflation is widespread, one must necessarily believe that juries are incapable of distinguishing between intentional and reckless states of mind, and are similarly unable to determine whether the circumstances of the defendant's actions created a grave, transcendent risk of death justifying a conviction of second-degree murder or a substantial risk of death warranting a manslaughter conviction. I have faith in the jury system — jurors are perfectly capable of making these determinations and it is therefore unnecessary for this Court to create artificial categories of depraved indifference murder that are not supported by the language of Penal Law § 125.25 (2). The majority recognizes that "[o]ftentimes it will not be easy to determine whether a defendant's conscious objective was to kill or merely to injure" but, nonetheless, "those are the hard choices to be weighed by the trier of fact" (majority op at 214). The majority then inexplicably fails to appreciate that the same is true with respect to distinguishing between an intentional and reckless state of mind — a determination that, although sometimes difficult, nevertheless traditionally has been and should remain the responsibility of a jury (see People v Sanchez, 98 NY2d at 384-385).

Ultimately, the majority's reasoning will not likely clarify this issue for courts and prosecutors, who continue to struggle to determine what this Court's view on depraved indifference will be on the facts presented in a particular homicide case. Although the majority has left open the possibility that additional categories of one-on-one homicides, other than the two explicitly identified in today's decision, may qualify for treatment as [228] depraved indifference murder if the circumstances are "extraordinary" (a term it does not define), trial courts and prosecutors are well advised to tread carefully when dealing with depraved indifference murder in the future, lest further injustices occur.

One thing is certain. We no longer have a category of reckless homicide that is comparable in grade and penalty to intentional murder, except in the rare situations authorized by the majority. There is an urgent need for the Legislature to reexamine article 125 of the Penal Law in the aftermath of today's decision. Undoubtedly, there will be future killings that juries may decide were not committed with an intent to kill, but were the result of reckless acts committed with a grave disregard for life. The policy issue is whether this type of criminal conduct should expose these offenders to criminal penalties more severe than those available for a class C felony conviction of manslaughter in the second degree. The Legislature should explore what societal objectives need to be preserved in article 125 and restructure New York's homicide statutes to meet those objectives.

The Cases Before Us

Based on the facts presented in these two cases, and applying our established principles of depraved indifference murder as articulated in Register and Sanchez, I conclude that there was legally sufficient evidence to support the second-degree murder conviction of defendant Santos Suarez. Viewed in the light most favorable to the People, the jury could have rationally determined that Suarez did not consciously intend to kill the victim when he became embroiled in a dispute with her, but rather acted recklessly by disregarding the grave risk that his conduct would result in the death of the victim. Suarez testified that he did not intend to kill the victim. Surely jurors are allowed to credit this testimony. Suarez also alleged that it was his girlfriend who produced the knife during their verbal confrontation. If found to be a credible claim by the jury, this was an indication that the attack by defendant was not premeditated (cf. People v Gonzalez, 1 NY3d 464 [2004] [after seeing the victim, the defendant departed and later returned with the murder weapon]; People v Hafeez, 100 NY2d 253 [2003] [retaliatory attack was plotted in advance]). There was also ample evidence that defendant's actions created such an exceptionally high, grave risk of death that they were properly classified as depraved indifference murder rather than manslaughter. The [229] victim received three stab wounds in her torso, two of which perforated a major vein and caused half of the blood in the victim's body to pour into her chest cavity. Under these circumstances, the jury's determination that Suarez was guilty of depraved indifference murder was rational as it was supported by record evidence.

As for defendant Trisha McPherson, I concur with the majority that the evidence was insufficient to justify a depraved indifference murder conviction. Unlike in Suarez, McPherson was not charged with both depraved indifference murder and intentional murder and the People did not assert at trial that she possessed an intent to kill. The only issue was whether there were objective circumstances evincing a depraved indifference to human life. The proof, even viewed in the People's favor, was that McPherson carried the knife to the scene and during an escalating argument with the victim, inflicted a single stab wound. McPherson then immediately called 911 for help and remained with the victim until she heard sirens indicating that assistance was on the way before departing, demonstrating her efforts to minimize the possibility that the wound she inflicted would prove to be fatal.

Accordingly, in People v Suarez, I would affirm defendant's conviction; in People v McPherson, I would modify by dismissing the depraved indifference murder conviction. In light of the majority's decision to remit McPherson for consideration of the proper remedy, it is unnecessary for me to address the proper corrective action that should be taken and I therefore express no view on the propriety of remittal.

In People v Suarez: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

[230] In People v McPherson: On defendant's appeal from the order of the Appellate Division affirming the judgment of conviction and sentence as to murder in the second degree, order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein. On defendant's appeal from the order of the Appellate Division affirming the order of Supreme Court denying defendant's CPL 440.10 motion, order affirmed.

[1] Certain enumerated aggravating factors elevate intentional murder in the second degree to murder in the first degree (Penal Law § 125.27 [1]).

[2] See e.g. Abraham Abramovsky and Jonathan I. Edelstein, Depraved Indifference Murder Prosecutions in New York: Time for Substantive and Procedural Clarification, 55 Syracuse L Rev 455 (2005); Paul Shechtman, Outside Counsel, The Meaning of Depraved-Indifference Murder: New Legislation?, NYLJ, Apr. 4, 2005, at 4, col 4; Brian F. Allen, A Step in the Right Direction: People v. Hafeez, Stopping the Expansion of Depraved Indifference Murder in New York State, 18 St John's J Legal Comment 875 (2004); Peter Dunne, Is There Life Left in Depraved Indifference Murder?, 2 NY Crim L Newsl [No. 4] 5 [NY St Bar Assn, Fall 2004]; see also Bernard E. Gegan, More Cases of Depraved Mind Murder: The Problem of Mens Rea, 64 St John's L Rev 429 (1990).

[3] Thus, under the People's theory, a defendant who plainly intended to kill the victim, and who succeeded, may be prosecuted only for intentional murder. But an inept defendant, who commits precisely the same acts with the intent to kill, but who fails to kill the victim right away and instead flees the scene of the attempted intentional homicide, will — despite having engaged in identical conduct with an identical mental state — have committed depraved indifference murder when the victim later dies. We cannot agree with this proposition. It is the rare killer indeed who, after inflicting a mortal wound intended at a minimum to cause serious physical injury, lingers at the scene of the crime or summons aid. "The People's tautology, if accepted, would improperly convert every intentional homicide" that does not succeed in bringing about the victim's immediate death into depraved indifference murder (Gonzalez, 1 NY3d at 468).

[4] We note that the statute no longer refers to depraved "mind" murder. Continuing to describe the crime in those terms improperly detracts from the current statute's requirement of indifference.

[5] It was therefore misleading for the prosecutor in Suarez to request in summation that the jury "find [defendant] guilty of Intentional Murder, or at the very least, that he acted with such depraved indifference that he disregarded her human life" (emphasis added).

[6] Of course, a one-on-one dispute will not always reflect a manifest intent to kill or injure. Rather, we make clear only that whether the infliction of serious or fatal injury was intended or not, such a confrontation can almost never support a finding of depraved indifference. It is up to the jury to decide in a particular case whether the defendant acted intentionally, or recklessly, or negligently (or not at all). Indeed, in McPherson — a one-on-one confrontation — the evidence was certainly sufficient to support a finding of reckless manslaughter, although not of depraved indifference murder. Nor do we make any absolute pronouncement "that a person who stabs someone with a knife cannot act with `a depraved indifference to human life'" (concurring/dissenting op at 219).

[7] Moreover, the mere presence of third persons at the scene of a killing does not convert an intentional homicide directed at a particular victim into depraved indifference murder unless others are actually endangered. Thus, in Gonzalez, although the defendant, after shooting the victim, "waved the gun at the only eyewitness — the barber — warned him not to say anything and walked out the door" (1 NY3d at 466), the evidence was legally insufficient to establish depraved indifference murder despite the presence of the barber in the shop at the time of the shooting (see also People v Sanchez, 98 NY2d 373 [2002] [depraved indifference murder conviction upheld because "others were endangered" (Payne, 3 NY3d at 272)]).

[8] By contrast, in authorizing lesser punishment for the crime of manslaughter in the first degree, the Legislature specifically determined that the intentional infliction of serious injury resulting in death is not 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" (id. at 287-288 [internal quotation marks and citations omitted]).

[9] Nor could Suarez's claims that he was acting in self-defense or that he could not remember what happened when he stabbed his girlfriend support his conviction for depraved indifference murder. Depraved indifference murder entails depraved indifference, not a mere loss of memory or actions performed without conscious focus (see also Gonzalez, 1 NY3d at 469 ["In arguing that the jury might have concluded that defendant acted out of fear and anger, and therefore without intent, the People confuse recklessness with extreme emotional disturbance. A defendant who commits murder because of uncontrollable emotion may be entitled to raise an affirmative defense to murder, but the extreme emotional disturbance defense does not negate intent. The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional. Indeed, when there is a finding that the defendant acted under extreme emotional disturbance, the offense is reduced from intentional murder in the second degree to intentional — not reckless — manslaughter in the first degree" (internal quotation marks and citations omitted)]).

[1] Adherence to the Register/Sanchez analysis may have adverse consequences for the stability of previous convictions. Some federal court decisions indicate that the statute as interpreted according to Register and Sanchez raises constitutional problems that should result in the release of some defendants on federal collateral review (see Jones v Keane, 2002 US Dist LEXIS 27418 [SD NY, May 22, 2002, 02 Civ 1804 (CLB)], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [SD NY, Sept. 19, 2003, 02 Civ 10248 (CLB)], revd on other grounds 374 F3d 181 [2d Cir 2004]; see also Policano v Herbert, 430 F3d 82 [2d Cir 2005]). Today's decision should alleviate those concerns.

[2] This view was expressed in the dissenting opinions of G.B. Smith, Ciparick and Rosenblatt, JJ. in Sanchez (98 NY2d 373, 401-402, 416 [2002]).

[1] There are two other categories of nonintentional murder in the second degree, including felony murder (see Penal Law § 125.25 [3], [4]).

[2] We also observed that the commentary to the Model Penal Code, which influenced our depraved indifference murder statute, was consistent with this view (see Sanchez, 98 NY2d at 384; Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 21-22 [1980]).

[3] Additionally, the rule announced by the majority in this case and Payne essentially creates a mandatory legal presumption that a person intends the ordinary consequences of his or her voluntary acts, which "reliev[es] the State of the burden of proof enunciated in Winship on the critical question of [the defendant's] state of mind" (Sandstrom v Montana, 442 US 510, 521 [1979]; see In re Winship, 397 US 358 [1970]).

[4] See Model Penal Code and Commentaries, part II, § 210.2, Comment 4, at 22 (1980) ("[i]t must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter").

[289] Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York City (Jillian S. Harrington, Barry M. Fallick and Irwin Rochman of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Michael S. Morgan of counsel), for respondent.

Judges ROSENBLATT, READ and R.S. SMITH concur with Judge G.B. SMITH; Judge CIPARICK dissents and votes to affirm in an opinion in which Chief Judge KAYE concurs; Chief Judge KAYE dissents in another opinion; Judge GRAFFEO dissents and votes to affirm in a separate opinion.

OPINION OF THE COURT

G.B. SMITH, J.

Defendant was convicted, after a nonjury trial, of reckless endangerment in the first degree in violation of Penal Law § 120.25. Because the verdict, as enunciated by the trial judge and affirmed by the Appellate Division, does not conform to this Court's precedents, we modify by reducing the conviction to reckless endangerment in the second degree.

[290] Facts

In February 2003 the 52-year-old defendant, an attorney working as an administrative law judge, attempted suicide in his 12th floor Manhattan apartment. Sealing the apartment door with tape, he blew out the pilot lights of his stove, turned on the gas, took tranquilizers and fell asleep in front of the oven, expecting the gas to kill him. Several hours later, a spark, apparently from the refrigerator compressor, ignited the gas, causing an explosion that wrecked the walls of his apartment and heavily damaged a number of neighboring apartments.

No one else was seriously injured and defendant himself survived. He was charged with first-degree reckless endangerment pursuant to Penal Law § 120.25, which provides that a person violates the statute "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."^[1]

Supreme Court found, in a nonjury trial, that defendant's state of mind was not one of depraved indifference but nevertheless, relying on People v Register (60 NY2d 270 [1983]), found him guilty and sentenced him to five years' probation. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

Discussion

The People first contend that defendant's argument that depraved indifference is a mens rea is unpreserved because he did not plainly present it to the trial court. The trial judge's decision, however, demonstrates that he specifically confronted and resolved this issue. Under these circumstances, we conclude that the preservation was adequate (People v Prado, 4 NY3d 725 [2004]).

To begin with, there is no dispute that the term "depraved indifference" has the same meaning in both the depraved indifference murder statute and the reckless endangerment statute. Defendant wishes this Court to say that the trial court should have viewed defendant's conduct with a subjective eye where the defendant must "evince a wicked and mischievous disregard [291] (i.e., utter indifference) for the near certain consequences of his... irresponsible act." Defendant argues that under this test, depraved indifference was not established—and indeed ruled out by the factfinder—and therefore his conviction should be reversed.

The People rely on Register, asserting that depraved indifference refers not to the mens rea or the actus reus of the crime but to the "factual setting in which the risk creating conduct must occur." In People v Register, after a night of drinking, defendant shot a man fatally for no explained reason. Defendant was acquitted of intentional murder but convicted of depraved indifference murder. In a 4-3 decision, a majority of this Court concluded that the Legislature did not intend that a mens rea element beyond mere recklessness be included in the definition of depraved indifference murder. "The concept of depraved indifference was retained in the new statute [adopted in 1965] not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder" (People v Register, 60 NY2d at 278). The three dissenters, however, contended that the predecessor statutes to Penal Law 125.25 (2) defined depraved indifference as a mens rea and that depraved mind and depraved indifference "connote a culpable mental state" (60 NY2d at 282).

In People v Sanchez (98 NY2d 373 [2002]), the jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder. The deceased and the defendant had previously been friends, and the shooting occurred after an argument erupted on the day of the shooting. Relying on People v Register, the majority of a divided court concluded that although the gun had been fired at point-blank range, it was fired at an angle, the shooting was instantaneous and impulsive, and the jury could have concluded that "defendant's homicidal level of mental culpability was reckless rather than intentional" (98 NY2d at 378). In dissent, Judge G.B. Smith stated, "To uphold the conviction of depraved indifference murder in this case is to authorize the substitution of depraved indifference murder for intentional murder at any time that a person shoots and kills another" (98 NY2d at 393). Also in dissent, Judge Rosenblatt stated that "by holding the facts at hand sufficient to establish depraved indifference murder, the majority leaves no conceivable circumstances under which a charge of intentional murder will not be amenable to a conviction for depraved indifference murder" (98 NY2d at 394). Judge Rosenblatt added:

[292] "Register dealt chiefly with the defense of intoxication, but ironically, the case has served as the fulcrum for what has become a steadily growing prosecutorial practice of charging defendants with depraved indifference murder as a companion count to intentional murder. The Register majority brushed aside the dissenters' prediction that the decision would `result in wholesale depraved mind murder prosecutions for what are essentially intentional murders' .... That prediction proved prescient, however, as revealed by the enormous growth in depraved indifference murder companion counts post-Register" (98 NY2d at 398).

After Register and Sanchez, and beginning in 2003, a number of decisions by this Court have pointed the law in a different direction. In People v Hafeez (100 NY2d 253 [2003]), after a jury found defendant not guilty of intentional murder but guilty of depraved indifference murder, the Appellate Division held that the evidence was insufficient for depraved indifference murder and this Court agreed. The evidence was that months after an unsuccessful confrontation with the deceased, the defendant and codefendant lay in wait for the deceased, and the codefendant stabbed him to death with a knife. Defendant was convicted of depraved indifference murder under an accomplice liability theory. We stated that:

"[t]o meet their burden for depraved indifference murder, the People must show that defendant's acts were `imminently dangerous and presented a very high risk of death to others' .... Here the actions of both defendants were focused on first isolating, and then intentionally injuring, the victim. From this record there exists no valid line of reasoning that could support a jury's conclusion that defendant possessed the mental culpability required for depraved indifference murder" (100 NY2d at 259).

In a concurrence, Judge Rosenblatt said that "the Court is limiting Sanchez by properly rejecting the incongruous notion that an intentional killing can reflect depraved indifference," and indicated that "the critical element in depraved indifference murder is not recklessness, but depraved indifference" (100 NY2d at 260).

In People v Gonzalez (1 NY3d 464 [2004]), after a jury found the defendant not guilty of intentional murder but guilty of [293] depraved indifference murder, this Court determined that a defendant could not be convicted of depraved indifference murder where a defendant first shot the deceased in the chest from a distance of six to seven feet, then shot him in the head as he fell to the floor and shot him eight more times as he lay on the floor. We concluded that the evidence indicated only an intentional murder. We stated:

"Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct ...

"Depraved indifference murder does not mean an extremely, even heinously, intentional killing. Rather, it involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs" (1 NY3d at 467-468).

In People v Payne (3 NY3d 266 [2004]), after a jury had acquitted the defendant of intentional murder but convicted him of depraved indifference murder, this Court held that defendant could not be found guilty of depraved indifference murder. There, a 20-year friendship between the defendant and the deceased was strained after the deceased was arrested and accused of sexually abusing an eight-year-old playmate of defendant's daughter. The defendant went to the home of the deceased and shot him in the chest with a 12-gauge "elephant" shotgun. We stated, "As the drafters of the Penal Law put it, depraved indifference murder is `extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo'" (3 NY3d at 272). In Payne, we stressed that such "[i]ndifference to the victim's life ... contrasts with the intent to take it" (3 NY3d at 270; see also Gonzalez, 1 NY3d at 467; Hafeez, 100 NY2d at 258-259).

Finally, in People v Suarez (6 NY3d 202 [2005]), the jury acquitted defendant of intentional murder but found him guilty of depraved indifference murder. The defendant had stabbed his girlfriend in the throat, the chest and the abdomen and left her to bleed to death. In People v McPherson, decided with Suarez, defendant was charged only with depraved indifference murder [294] and first-degree manslaughter. She was convicted of depraved indifference murder. There, the defendant had stabbed the deceased with a knife and left him to die. This Court concluded that rarely can depraved indifference murder apply to the killing of a single victim. In a concurrence, three Judges of this Court indicated that they would "explicitly" overrule People v Register and People v Sanchez (id. at 217 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Another Judge concurred on constraint of our decisions in Hafeez and Payne (id. at 219 [Read, J., concurring]). While the Suarez court did not explicitly overrule Register and Sanchez, we conclude that the law has changed to such an extent that People v Register and People v Sanchez should no longer be followed.

We say today explicitly what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state. Our dissenting colleagues contend that this final step in the overruling of Register is unwarranted and unnecessary.^[2] Perhaps we would agree with that were it not for the setting in which the present case comes to us. In earlier cases (Hafeez, Gonzalez, Payne, Suarez), we reversed depraved indifference murder convictions without having to discuss explicitly the question of mens rea. It was enough to say—and we said it repeatedly—that those defendants did not commit depraved indifference murder because depravity or indifference was lacking.

Beginning with Hafeez, the Register/Sanchez rationale was progressively weakened so that it would no longer support most depraved indifference murder convictions, particularly one-on-one shootings or stabbings. Indeed, Judge Read, in her concurrences in Suarez and McPherson, said that the results were compelled by Hafeez and Payne.

In Suarez, it was not necessary for us to state explicitly whether depraved indifference is a mental state (mens rea). In the case before us, however, the trial judge rendered his verdict in a way that requires us to address directly the question of mens rea.

[295] Here, defendant might well be said to have acted with the mens rea of depraved indifference had the factfinder simply announced a guilty verdict. Viewing the evidence in the light most favorable to the People, we could properly have affirmed the conviction, concluding that the factfinder inferred that defendant had the requisite mental state (depraved indifference). But the verdict does not allow that to happen here. Here, the trial judge said he would have acquitted defendant of first-degree reckless endangerment but felt himself prohibited by Register from doing so. The Appellate Division ignored the trial judge's findings and affirmed, citing Register. Given the trial judge's findings, we cannot affirm the conviction because we cannot conceive that a person may be guilty of a depraved indifference crime without being depravedly indifferent. When a jury (or here, the court at a bench trial) pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was.

In Suarez, we could readily hold that under any view of the evidence Suarez's acts did not amount to depraved indifference. The case before us is different. The factfinder here went out of his way to explain that

"[t]his defendant was a plainly depressed individual, who committed an extremely reckless and foolish act not because of his lack of regard for the lives of others but because of his focus upon his troubles and himself. While being reckless, the defendant's state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act."

Thus, the factfinder actually pronounced defendant innocent of the core criminal element, depraved indifference. The dissenters protest this, but their objection is more properly directed against the verdict than against the law. That a large number of people were endangered does not mean that defendant was depravedly indifferent, particularly when the factfinder went to great pains to say the opposite.

We regard this as a juridical imperative, much the same as in any analogous situation. A person accused of stealing may be guilty of larceny, but a guilty verdict may not stand if the jury finds in a special verdict that the defendant did not intend to take anything. So, too, a person may not be said to have acted with the mens rea of depraved indifference when the jury (or [296] court as factfinder) tells us that he was not depravedly indifferent.

In short, we do not say that someone who endangers others by turning on the gas jets may never be found guilty of a depraved indifference crime. Here, however, because the factfinder told us that defendant was not depravedly indifferent, he cannot be properly convicted of first-degree reckless endangerment.

While our dissenting colleagues rely primarily on Suarez, we are unable to read Suarez as they do. We disagree with the Chief Judge's suggestion that the per curiam opinion in Suarez "decided the question" (at 302) by declining the suggestion of the concurrence to overrule Register and Sanchez. The three authors of the concurrence also signed the per curiam opinion and did not think that they were deciding the question contrary to their own views. The difference between the per curiam and the concurrence in Suarez was over whether to recognize "explicitly" that Register and Sanchez had been de facto overruled in prior cases. To the extent that the per curiam opinion may have left that question in doubt, the doubt is now removed.

We agree with the statement in Judge Ciparick's dissent that Suarez correctly states the law in saying that "depraved indifference 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" (at 298). We also accept Judge Ciparick's statement, paraphrasing Suarez, that "a depraved and utterly indifferent actor is someone who does not care if another is injured or killed" (id.). To us, however, the words "utter disregard," "willingness," and "does not care" can only describe a state of mind. We thus confirm what is implicit in the line of cases from Hafeez to Suarez. This Court has adopted the view of the Register and Sanchez dissents that "depraved indifference to human life" is a culpable mental state.

Our holding today will not, as the Chief Judge fears, prevent depraved indifference murder convictions in cases where they are warranted. The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence. We agree that the Chief Judge's hypothetical—"a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars"—states a "quintessential" case of depraved indifference [297] murder, because in that case the circumstantial proof of depraved indifference would be compelling (at 303). The Chief Judge suggests it is almost equally compelling here—and, indeed, perhaps a reasonable factfinder could infer depraved indifference from these facts. But the factfinder in this case did not.

Accordingly, the order of the Appellate Division should be modified by reducing defendant's conviction to reckless endangerment in the second degree and remitting to Supreme Court for resentencing and, as so modified, affirmed.^[3]

CIPARICK, J. (dissenting).

Because I believe that our very recent holding in People v Suarez (6 NY3d 202 [2005]) compels a different result, I respectfully dissent.

Viewing the evidence in the light most favorable to the People, as we must, a rational trier of fact could reasonably find, beyond a reasonable doubt, the essential elements of the crime of reckless endangerment in the first degree in this case.^[4] Reckless endangerment in the first degree "seeks to prevent and criminalize the risk alone created by an actor's conduct" as opposed to proscribing "a particular resulting outcome or injury" (People v Chrysler, 85 NY2d 413, 415 [1995]; see also People v Davis, 72 NY2d 32, 36 [1988]). In a prosecution for first-degree reckless endangerment two elements must be proven: first that defendant recklessly engaged in conduct that created a grave risk of death to another person,^[5] and second that the defendant did so under circumstances evincing a depraved indifference to human life.

Both parties agree that our precedents construing the phrase "circumstances evincing a depraved indifference to human life" [298] as applied to depraved indifference murder are applicable to the crime of reckless endangerment in the first degree. Even giving the same meaning to the phrase "under circumstances evincing a depraved indifference to human life" as used in both the depraved indifference murder statute and the reckless endangerment in the first-degree statute, defendant's conviction should be upheld, as nothing in our precedents requires the imposition of a separate culpable mental state—mens rea—to the element of depraved indifference to human life.

In Suarez, we made "clear that depraved indifference 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" (6 NY3d at 214). Stated differently, a depraved and utterly indifferent actor is someone who does not care if another is injured or killed by his or her extremely dangerous acts, and the failure to give even a thought to such potential harm in the first place can, in and of itself, establish the depraved indifference element of the statute. By requiring a separate mens rea for this second element the majority today has overruled People v Register (60 NY2d 270 [1983]), People v Sanchez (98 NY2d 373 [2002]) and to a certain extent People v Suarez (6 NY3d 202 [2005]), as well as case law dealing with the crime of first-degree reckless endangerment (see e.g. People v Lynch, 95 NY2d 243 [2000]; People v Chrysler, 85 NY2d 413 [1995]; People v Davis, 72 NY2d 32 [1988]).

In Suarez we stated that depraved indifference reflects "wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts" (6 NY3d at 214 [emphasis added]). A violent explosion in a heavily populated multiple-residence apartment building is a brutal, heinous and despicable act, and one who causes such act exhibits wickedness, evil and inhumanity.

There is no need that a defendant subjectively harbor a "wicked" or "evil" mind, as now required by the majority. Purposefully turning on the gas and creating such an explosion in an occupied apartment building—for whatever reason, here in an attempt to commit suicide—is "`so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy' as to render the actor as culpable as one whose conscious objective is to [cause injury to others]" (Suarez, 6 NY3d at 214, quoting People v Russell, 91 NY2d 280, 287 [1998]). Defendant's acts in creating an explosive gas [299] environment evince a depraved disregard for the nearly certain consequences of his irresponsible acts. That defendant was focused on his troubles and himself does not render his actions any less irresponsible nor should it provide immunity from prosecution for a felony charge.^[6] Conduct evincing depraved indifference to human life is not excusable because defendant's mind was elsewhere or because he turned a blind eye to the potential danger.

Only six months ago in Suarez, we "depart[ed] slightly from the Register formulation" only to make clear that the "additional requirement of depraved indifference has meaning independent of the gravity of the risk" (6 NY3d at 215).^[7] In defining the second element of depraved indifference murder, we did not, however, create a separate mens rea requiring an analysis of a defendant's subjective intent. The gravity of risk was created by defendant's act of flooding his apartment with gas and turning it into a bomb that needed only an ignition source. It was not necessary for the People to prove that in addition to the extremely reckless nature of defendant's conduct, he acted with an "`uncommonly evil and morally perverse frame of mind'" (Sanchez, 98 NY2d at 383, quoting 98 NY2d at 396 [Rosenblatt, J., dissenting]). When viewed objectively, defendant manifested "an utter disregard for the value of human life" (Suarez, 6 NY3d at 214).

We have identified several quintessential examples of conduct—rare circumstances—evincing depraved indifference to human life, among them the placing of a time bomb in a public place (see Suarez, 6 NY3d at 214). So too the situation here is so inherently dangerous to the lives of others that it should be likewise classified as one of those rare circumstances demonstrating such an utter disregard for the lives of others evincing an actor's depraved indifference to human life.

I would thus affirm the conviction and hold as the Appellate Division, not on the strength of Register but on the teachings of [300] Suarez, that "[r]eckless endangerment does not require a showing of extreme wickedness or abject moral deficiency on the part of the perpetrator" (People v Feingold, 22 AD3d 242 [1st Dept 2005], citing People v Narimanbekov, 258 AD2d 417 [1st Dept 1999]). It is sufficient that the defendant recklessly engaged in conduct which created a grave risk of death to others and that this defendant did so under circumstances evincing a depraved indifference to human life as we defined it in Suarez.^[8]

Furthermore, this construction is in keeping with the plain language of the statute and its legislative intent. Here the Legislature used the term "recklessly" to define the mens rea element of first-degree reckless endangerment (see Penal Law § 15.05 [3]; § 120.25). A defendant thus must act "recklessly." The additional element that this reckless conduct must be committed "under circumstances evincing a depraved indifference to human life" (Penal Law § 120.25) refers not to a mental state but to the factual circumstances under which the crime occurred (when viewed objectively) evincing a depraved indifference to human life. The Legislature was free to retain the old "depraved mind" language but chose to forgo that in favor of a requirement of indifference (see Suarez, 6 NY3d at 210 n 4).

Lastly, there is no question here that defendant acted extremely recklessly, as even Supreme Court opined. Its further assessment of defendant's subjective mental state was totally irrelevant. As the trial judge noted, he was expressing a "concern" and would have acquitted defendant if the law was as stated in the dissenting opinions of Register and Sanchez. His expression of concern does not require us to address directly the question of mens rea, as the majority believes it does (majority op at 294). Certainly a trial judge is free to say what he or she believes the law should be but is nonetheless bound to apply the law as it is. We would expect no less from a jury, which is free to privately disagree with the law but is bound to accept it as charged by the judge. The judge here was not required to go beyond his verdict of guilty.

Accordingly, I would affirm the order below.

Chief Judge KAYE (dissenting).

I join fully in Judge Ciparick's [301] dissent. I write separately in light of the majority's decision to overrule People v Register (60 NY2d 270 [1983]), in which I had joined. That extraordinary step is neither necessary, nor warranted, in this case.

Over the years, we have had a number of occasions to revisit Register, most recently in People v Suarez (6 NY3d 202 [2005]), barely six months ago. In Suarez this Court, in a per curiam opinion, "depart[ed] slightly" from the Register formulation by making clear "that the additional requirement of depraved indifference has meaning independent of the gravity of the risk" (6 NY3d at 215). We did not, however, retreat from a core holding of Register—that the requirement that a defendant act "under circumstances evincing a depraved indifference to human life" does not constitute a mental state.

As we explained in Suarez, there was good reason for our slight departure from Register. Experience had shown that the fine distinction between the "substantial" risk required to prove manslaughter in the second degree and the "very substantial" risk necessary to elevate the offense to depraved indifference murder had provided "insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes" (6 NY3d at 215). Further, the proliferation of twin-count indictments alternatively charging defendants who had killed in the course of routine one-on-one confrontations with inconsistent theories had, over time, come to blur the distinction between intentional and depraved indifference murder. At least one federal court had expressed the view that the depraved indifference murder statute had become unconstitutionally vague (see Jones v Keane, 2002 US Dist LEXIS 27418 [US Dist Ct, SD NY, June 6, 2002], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [US Dist Ct, SD NY, Sept. 19, 2003], revd on other grounds 374 F3d 181 [2d Cir 2004]).

In addressing these concerns, we made clear that depraved indifference "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" (6 NY3d at 214). "[M]anifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is 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 render the actor as culpable as one whose conscious objective is to kill" (id. [internal quotation [302] marks and citations omitted]). Although three concurring Judges expressed a desire to overrule Register, the Court in Suarez decided the question by declining to take that step. Nothing has changed in the intervening weeks to warrant such action now. Certainly we have seen no evidence that the careful medicine administered in Suarez has failed to cure any perceived problems—indeed, it has scarcely had time to take effect.

The rule currently in place, though it may not be that favored by today's majority, is susceptible of ready application, and results in no injustice. Indeed, it is far more workable than the rule the majority adopts today, as evidenced by the case at hand.

Defendant, so focused on his desire to take his own life that (we are asked to believe)^[9] he gave no thought whatsoever to the life or safety of others, recklessly caused a massive explosion by leaving on the gas jets in a densely occupied residential apartment building in the midst of Manhattan. Miraculously, no one was killed or injured. Both parties agree that the phrase "under circumstances evincing a depraved indifference to human life" must have the same meaning for purposes of the murder statute and the reckless endangerment statute, charged here. That being so, the majority would necessarily hold that this defendant could not have been convicted of depraved indifference murder even if hundreds of people had been killed by the explosion he so recklessly and wantonly caused. I cannot agree.

To my mind, defendant's extremely reckless conduct squarely evinced "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" (Suarez, 6 NY3d at 214). The majority would limit this level of disregard for the lives or safety of others to circumstances where the defendant consciously has in mind the likelihood of injury to innocent persons and nevertheless deliberately chooses to proceed with the dangerous course of conduct.

While I agree that depraved indifference includes these situations, I fail to understand why it must be restricted to such cases. In my view, "utter indifference" to human life easily covers instances in which a person undertaking a mortal act fails to consider the potential impact on his or her neighbors. Indeed, the failure to be at all concerned with the lives of others is the very epitome of depraved indifference, regardless of whether [303] such utter indifference arises from a malicious wickedness toward humanity or, as here, a complete unmindfulness of one's fellows born of total self-absorption.

In People v Payne (3 NY3d 266 [2004]), this Court identified two "species" of depraved indifference—one involving acts directed against a particular victim, "marked by uncommon brutality" but without an intent to kill; the other involving defendants who, "lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoot[] into a crowd or otherwise endanger[] innocent bystanders" (3 NY3d at 271). The instant case fits squarely within this second category, which we have never before felt the need to restrict. Rather, in Suarez, where we carefully delineated the rare circumstances in which a one-on-one confrontation might properly result in depraved indifference murder, we noted that the "[q]uintessential examples" of depraved indifference involve situations in which more than one person is endangered (Suarez, 6 NY3d at 214).

By definition, depraved indifference murder can be found only where there is not an intent to kill. Its starting point is an unintentional killing. Thus, whatever underlying motive a defendant may have with respect to some goal unrelated to the ultimate victims of his actions, it is the conduct itself that demonstrates depraved indifference. Plainly, if a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars, there would be a quintessential depraved indifference murder. The case before us is no different.

If a defendant means to hurt someone, a finding of depraved indifference is precluded (see Suarez, 6 NY3d 202 [2005]; Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]). But if, as here, he succeeds in persuading a trier of fact that he didn't mean to hurt anyone, the Court also forecloses his conviction of any crime requiring a showing of depraved indifference. Legally sufficient evidence of depraved indifference cannot be rendered insufficient by a defendant's mere denial of guilt of the charged crime—that is, by a claim that "I didn't mean to hurt anyone; I never thought about whether anyone else might be in danger."

While defendant's denial that he considered his neighbors, if believed by the factfinder, would absolve him of culpability for intentional homicide, it is the very proof of his depraved indifference. [304] A person living in a multiple-residence apartment building who is about to engage in mortally dangerous conduct should give thought to those who might be around him—whether in the same apartment, in the building or in the area. Regardless of whether it simply didn't occur to defendant to think about others—or whether he did give a thought to their safety but just didn't care—either way he evinced a depraved indifference to human life.^[10] For this he was convicted of a felony and sentenced to five years' probation. The majority concludes, however, that defendant's perilous acts made him culpable of no more than reckless endangerment in the second degree—a misdemeanor.

Contrary to the majority, the factfinder here did not find defendant "innocent of the core criminal element, depraved indifference" (majority op at 295 [emphasis deleted]). Rather, the factfinder simply believed that "defendant's state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act." But until today, such moral deficiency was not the test of depraved indifference. In other words, it does not matter that the trial judge believed that defendant would not have been guilty of a differently defined crime. Under Register, as well as Suarez, defendant's subjective mental state with respect to his potential victims was irrelevant. The People did not need to prove, as opined by the trial judge, that defendant acted "because of his lack of regard for the lives of others" (emphasis added), but merely that he acted with such disregard.

Finally, the Court's limitation on depraved indifference is not restricted to cases involving one-on-one confrontations. Rather, prosecution for the second "species" of depraved indifference— that in which multiple persons are endangered—will now also be foreclosed by a defendant's claim (if believed) that he or she didn't mean it. The majority today leaves nothing of depraved indifference but a risk for prosecutors in charging these offenses.

GRAFFEO, J. (dissenting).

I continue to believe that People v [305] Suarez (6 NY3d 202 [2005]) was wrongly decided since it deviated significantly from People v Sanchez (98 NY2d 373 [2002]) (see People v Suarez, 6 NY3d at 219 [Graffeo, J., concurring in part and dissenting in part]). Because the majority in this case goes further and overrules Sanchez, I agree with my dissenting colleagues that today's transformation of the well-settled meaning of "depraved indifference" from an objective factual assessment into a subjective mens rea requirement cannot be reconciled with the language of the reckless endangerment statute or the prior rationale of this Court (see People v Suarez, 6 NY3d at 219-228 [Graffeo, J., concurring in part and dissenting in part]). That being said, my dissenting colleagues have cogently explained why the facts of this case fit within the depraved indifference jurisprudence discussed in Suarez (see id. at 214) and defendant's conviction should be affirmed on this basis alone.

Order modified, etc.

[1] Identical language is contained in the depraved indifference murder statute, Penal Law § 125.25 (2), which reads: "A person is guilty of murder in the second degree when ... 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person."

[2] Contrary to what Judge Ciparick's dissent may suggest, we do not overrule "case law dealing with the crime of first-degree reckless endangerment" (at 298). We overrule, by implication, only those depraved indifference reckless endangerment cases that rest on the premise that depraved indifference is measured not by a culpable mental state but by an objective assessment of the risk involved. Further, we reject Judge Ciparick's assertion that we have overruled Suarez. We have, however defined depraved indifference as a culpable mental state—a point not definitively addressed in Suarez.

[3] Penal Law § 120.20 reads, "A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person."

[4] "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" (Penal Law § 120.25).

[5] Penal Law § 15.05 (3) defines "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."

[6] Penal Law § 120.20 defines reckless endangerment in the second degree as when a person "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." This crime is a class A misdemeanor.

[7] Certainly the per curiam opinion in Suarez represented "the concurrence of four ... necessary to a decision" (NY Const, art VI, § 2 [a]). The majority did not implicitly or "explicitly" overrule Register and Sanchez, nor had they been "de facto overruled in prior cases" (majority op at 296). The concurrence of three in Suarez would have preferred that result, and achieves it here.

[8] The abuses that we have sought to correct—the prosecution of twin-count indictments under both intentional and depraved indifference theories—are not present here. I see no need to go beyond what we held in Suarez to expand the definitional scope of depraved indifference by holding that proof of depraved indifference now requires an assessment of defendant's subjective intent, especially in a case involving multiple potential victims.

[9] Even the smell of gas in a residence should precipitate some investigation because danger is obvious.

[10] Of course, reckless endangerment in the first degree, like depraved indifference murder, also requires recklessness, which involves the conscious disregard of a known risk (see Penal Law § 15.05 [3]). Defendant does not contend that the trial proof was insufficient to establish the element of recklessness, and the trier of fact expressly found that defendant committed "an extremely reckless and foolish act."