Summary
declining to apply new depraved indifference standard retroactively to a collateral attack on a 14–year old murder conviction
Summary of this case from People v. DraytonOpinion
No. 125.
Argued May 31, 2011.
Decided June 23, 2011.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 25, 2010. The Appellate Division (1) reversed, on the law, so much of an order of the Westchester County Court (Rory J. Bellantoni, J.; op 21 Misc 3d 1103[A], 2008 NY Slip Op 51938[U]), as had granted that branch of defendant's motion which was pursuant to CPL 440.10 to vacate a judgment of that court (Peter M. Leavitt, J), which had convicted defendant, upon a jury verdict, of murder in the second degree, (2) denied the CPL 440.10 motion, (3) reinstated the judgment, and (4) remitted the matter to County Court with directions to promptly direct defendant to surrender himself to that court in order that execution of the judgment may resume.
In 1997, the defendant, an off-duty police officer, was convicted of depraved indifference murder for fatally shooting the victim outside of a store owned by his parents. At trial, defendant had proffered a justification defense, contending that he shot the victim, whom defendant and others had just beaten in a dispute over a parking space, as the victim was about to strike the defendant's father with a baseball bat. In 2006, defendant moved to vacate the judgment of conviction on the grounds that it was not supported by legally sufficient evidence of depraved indifference; that there was newly discovered evidence; and that the People had failed to disclose exculpatory evidence.
The Appellate Division concluded, in part, that defendant's motion to vacate the judgment on the ground that the trial evidence was insufficient to establish that he had acted with depraved indifference should have been summarily denied, since a court must deny such a motion when the issue raised was previously determined on the merits upon an appeal from the judgment. Defendant, on direct appeal, had contested the sufficiency of the evidence, and the issue was decided against him under the law in effect at the time of the judgment. The Appellate Division stated that the sole exception to mandatory summary denial was if there had been a retroactively effective change in the law controlling such issue since the time of the appellate determination. In addition, the Appellate Division found that although the law regarding depraved indifference murder had changed subsequent to the defendant's direct appeal ( see People v Feingold, 7 NY3d 288), the Court of Appeals unequivocally instructed that the new depraved indifference standard was not to be applied retroactively by way of a CPL article 440 motion.
People v DiGuglielmo, 75 AD3d 206, affirmed.
Mayer Brown LLP, New York City ( Andrew H. Schapiro, Scott A. Chesin, Allison M. Stowell and Ames C. Grawert of counsel), for appellant.
Janet DiFiore, District Attorney, White Plains ( Raffaelina Gianfrancesco, Richard Longworth Hecht and Maryanne Luciano of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed. Assuming that defendant made a specific request for the material alleged to be exculpatory, we find no reasonable possibility that any failure to disclose it contributed to the verdict ( see People v Vilardi, 76 NY2d 67, 77). Moreover, we reject defendant's claim that the evidence supporting his conviction of depraved indifference murder is legally insufficient because of our decision in People v Feingold ( 7 NY3d 288). The standard enunciated in Feingold simply does not apply retroactively to cases on collateral review ( see Policano v Herbert, 7 NY3d 588, 603-604), and defendant's claim that such a result violates the Federal Due Process Clause is without merit ( Wainwright v Stone, 414 US 21, 23-24).
Order affirmed in a memorandum.