The Court of Appeals decision in People v Suarez, 6 NY2d 202 [2005] continues to affect murder convictions in the Appellate Divisions. Last week, the First Department reversed yet another depraved indifference murder conviction in People v Hernandez, 2007 NY Slip Op 05653. In Hernandez, the victim Juan Melendez was approached by defendant and his codefendant, Jason Lopez. According to one witness, the defendant put a gun to Melendez's head and said, "Give me your chain. I'm not playing." As Melendez was taking off the chain, defendant grabbed the medallion to "help take it off," whereupon Melendez began to struggle with defendant and shots were fired. Melendez suffered four gunshot wounds and was killed. The defendant made two inculpatory statements to the police in which he basically indicated that co-defendant Lopez wanted to steal the victim's chain, and Lopez handed him a gun, and that in the ensuing struggle to obtain the chain, the gun he was holding went off.
The jury was instructed to consider the following charges: murder in the first degree (intentional murder in the course of a robbery), intentional murder, depraved indifference murder, felony murder, two counts of robbery in the first degree, manslaughter in the first and second degrees, and criminal possession of a weapon in the second and third degrees. Defendant was acquitted of the first two charges, murder in the first degree and intentional murder, but convicted of depraved indifference murder. Pursuant to the court's instructions, the jury did not reach the remaining charges.
The People agreed that the evidence was insufficient to convict the defendant of depraved indifference murder. Instead, they argued that such an argument was unpreserved for review. The First Department used its interest of justice jurisdiction and found that that although the evidence might support a conclusion that defendant either deliberately shot the victim in the course of a robbery or did so accidentally when the victim began to struggle during the robbery, there was no evidence from which to conclude that defendant acted under circumstances evincing a depraved indifference to human life.
The First Department also indicated that since the jury stopped deliberating when it found the defendant guilty of depraved indifference murder, it was never given an opportunity to return a verdict on the felony murder count or any other remaining charges. Thus, retrial on those unreached counts would not violate double jeopardy. Thus, the case was sent back for trial on the unreached counts.
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