New York has a form of
felony assault where "serious physical injury" is committed
recklessly, not intentionally. After learning about the life-threatening nature of
strangulation, it appears that many such incidents could be charged as
Assault 1st Degree under New York Penal Law 120.10, subdivision 3.
2000, we obtained a conviction after jury trial for "reckless
depraved" Assault 1st degree, a violent felony, in the Clinton County
Court case of People v Scott Miller, using the expert medical
testimony and legal theory discussed here. He was sentenced to five
years in state prison. Before the Strangulation Conference, it is
likely he would have been charged with only a violation or a misdemeanor.
pertinent statutory definitions follow, along with a Memorandum of Law
describing the case-law interpretation of "reckless depraved
indifference" and relevant decisions on Assault 1st Degree.
1st - Penal Law 120.10, sub 3:
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 serious physical injury to another person.
Physical Injury - Penal Law 10.00, sub. 10:
physical injury means physical injury which creates
a substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.
Injury - Penal Law 10.00, sub. 9:
injury means impairment of physical
condition or substantial pain.
Many strangulation cases
create grave risk of death because the pressure from the hands closes off
the veins in the front of the neck. This prevents the return of
blood from the head, where it was pumped by the arteries.
cells then begin to die within 60 seconds. This is much more
life-threatening than closing off the airway. A medical expert can
testify at Grand Jury and trial regarding the anatomy and functioning of
these structures and explain how easily and quickly a person can be killed
The testimony from the victim will describe
what she was going through as she was being strangled. Likely, this
will include that she couldn't breathe; she may also may say there were
changes in her vision, such as seeing stars, or everything starting to go
gray. Isn't this "impairment of condition," amounting to
"physical injury" under the Penal Law?
expert witness will be able to testify about what is going on her with the
blood supply being cut off to her brain, explaining these symptoms, and how
quickly she would have died if he had not stopped. Isn't this a
grave and substantial risk of death?
following Memo of Law may help answer the defense challenges. . . .
Memorandum of Law
by Penelope D. Clute, Former Clinton County District Attorney
The seminal case expressing the meaning of
"depraved indifference recklessness" is People v Register, 60
NY2d 273, 469 NYS2d 599 (1983), where the defendant shot and killed one man
and seriously injured two others in a crowded bar. The issue on appeal was
whether the trial court erred in refusing to instruct the jury that
intoxication could "negate an element of the crime of depraved mind
The Court of Appeals ruled that intoxication is not
a defense or excuse to "depraved mind murder," although it may be
to intentional murder. Its analysis started with distinguishing reckless
manslaughter from the "depraved indifference recklessness"
necessary for murder:
to bring defendantís conduct within the murder
statute, the People were required to establish also that defendantís
act was imminently dangerous and presented a very high risk of death to
others and that it was committed under circumstances which evidenced a
wanton indifference to human life or a depravity of mind. . . . . The
crime 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 defendantís conduct. 60 NY2d at
The focus is on the defendantís conduct and the
circumstances under which he acted.. "The juryís proper role . .
. was to make a qualitative judgment whether defendantís act was of such
gravity that it placed the crime upon the same level as the taking of life
by premeditated design." Id.
The "depraved indifference" requirement
is not an
element in the traditional sense but rather a definition of the
factual setting in which the risk creating conduct must occur -
objective circumstances which are not subject to being negatived by
evidence of defendant's intoxication. Id. at 277.
. . . . The
phrase "[u]nder circumstances evincing a depraved indifference
to human life" refers to the wantonness of defendantís
conduct and converts the substantial risk present in manslaughter
into a very substantial risk present in murder. . . .
focus of the offense is not upon the subjective intent of the
defendant, as it is with intentional murder, but rather upon an
objective assessment of the degree of risk presented by defendantís
reckless conduct. Id. at 277.
. . . .
. . . . depraved mind murder is a crime involving
recklessness plus aggravating circumstances. Id. at 278.
The Court of Appeals emphasized that "depraved mind
murder is distinguishable from manslaughter, not by the mental element
involved, but by the objective circumstances in which the act occurs. . . .
." Id. "In sum, the statutory requirement that the homicide
result from conduct evincing a depraved indifference to human life is a
legislative attempt to qualitatively measure egregiously reckless conduct
and to differentiate it from manslaughter." Id. at 279.
The criteria set forth in Register were followed
by the Court of Appeals in People v Roe, 74 NY2d 20, 544 NYS2d 297
(1989). This was a homicide case where a 15 year old boy deliberately loaded
a shotgun with a mix of "live" and "dummy" shells, then
pointed the shotgun directly at his 13 year old friend and fired it, saying
"Letís play Polish roulette. Who is first?" In upholding the
legal sufficiency of the evidence to support the defendantís conviction
for depraved indifference murder, the Court stated that this
is a nonintentional homicide. It differs
from manslaughter, however, in that it must be shown that the actor's
reckless conduct is imminently dangerous and presents a grave risk of
death; [it] depends upon the wantonness of defendant's acts.
This is not a mens rea element which focuses "upon the
subjective intent of the defendant;" . . . rather it involves "an
objective assessment of the degree of risk presented by defendant's reckless
conduct." 74 NY2d at 24.
Helpful in assessing the risk-creation aspect is People
v Galatro, 84 NY2d 160, 615 NYS2d 650 (1994), where the issue on appeal
was the sufficiency of the Grand Jury evidence to support the charge of
Reckless Endangerment 2nd Degree. The defendants struck the
complainant, knocking him unconscious, then left him in the middle of a busy
street. Witnesses to the incident assisted the victim and called the police.
The Supreme Court dismissed the indictment, concluding
that the evidence was not legally sufficient to support the reckless
endangerment charge. It determined that the defendantsí conduct did not
create a substantial risk of serious physical injury [by being struck by a
car] since the witnesses assisted the complainant out of the street.
However, the Appellate Division reversed, reinstating the
indictment. The Court of Appeals agreed with the Appellate Divisionís
statement that "it did not matter that bystanders quickly rendered the
assistance the defendants had failed to provide, since
(emphasis supplied) 84 NY2d at 163.
Ď[t]he statutory risk was present the moment the victim
lay unconscious on the pavement as a result of the defendantsí actions
The Galatro court then cited its decision in People
v Davis, 72 NY2d 32, 36, 530 NYS2d 529, noting that "the reckless
endangerment statutes Ďseek to prevent the risk created by the actorís
conduct, not a particular outcome,í and the risk of injury alone will
sustain prosecution." 84 NY2d at 164.
Many appellate courts have applied the same analysis to
depraved mind assault. They examine the defendantís conduct and the
circumstances to reach a conclusion whether the assault was merely
reckless or properly aggravated to "depraved mind." Cases in which
the more serious depraved indifference assault has been upheld often involve
helpless victims, usually infants or the elderly.
Assault 1st Degree and Reckless Endangerment
Degree convictions were upheld in People v Cotton, 214 AD2d 994, 627
NYS2d 192 (4th Dept 1995) The defendant repeatedly forced the
head of his sixteen day old son into the cushions of a couch and flipped the
infant over by his leg, causing a spiral fracture of the tibia. The Fourth
Department agreed with the jury that the evidence was sufficient to
establish that the defendantís conduct created a grave risk of death to
the infant and caused the child serious physical injury. Id. at 995.
In People v Nix, 173 AD2d 285, 569 NYS2d 677 (1st
Dept 1991), evidence was found sufficient to establish that the defendant
acted with depraved indifference to human life in a "shaken baby
syndrome" Assault 1st Degree case. In Nix, the
defendant recklessly shook his three and a half month old son on more than
one occasion causing severe injuries to the baby. The expert testimony also
established that the babyís injuries were not accidental, but "could
only have been caused by a violent shaking of the child."
Similarly, in People v Pope, 241 AD2d 756, 660
NYS2d 466 (3rd Dept 1997), "the evidence amply suggests a
conclusion that the child died as a result of defendantís brutality and
not an accident." His conviction for Murder 2nd Degree was
The Second Department rejected the defendantís claim of
legally insufficient evidence for depraved indifference assault in People
v Paul, 209 AD2d 447, 618 NYS2d 456 (2nd Dept. 1994). The
evidence showed that the defendant "on four occasions within 24 hours,
either dropped his four-day-old daughter, or tripped with her, causing her
to hit her head and suffer permanent serious injuries."
In People v Williams, 191 AD2d 234, 594 NYS2d 252
(1st Dept 1993), defendantís conviction for Reckless
Endangerment 1st Degree after a jury trial, was upheld. This case
exemplifies the crux of "depraved indifference", being the risk
created by the defendantís conduct, not the injuries actually resulting.
The defendant repeatedly hit the victim with a baseball bat in the head,
arms and legs while another person held the victim. The First Department
held that "the fact that the complainant was not grievously injured is
not controlling since "The risk of injury alone sustains prosecution
[under Penal Law 125.25]." (citing People v Davis, 72
NY2d 32, 35-36).
Assault 1st Degree under the depraved
indifference theory was upheld in People v Jones, 236 AD2d 217,
653 NYS2d 323 (1st Dept 1997), where the defendant shook her
23-day-old infant "so vigorously that his head snapped forward and
back, she lost her grip and forcibly propelled the infant to the floor
six feet away."
The Third Department upheld an Assault 1st
Degree conviction in People v Wieber, 202 AD2d 789, 609 NYS2d 398 (3rd
Dept 1994), where the defendant recklessly propelled an 85 year old man
forward, striking a door and the floor. "His body was bruised on the
arms, feet, legs, and upper chest, and he had broken ribs." 202 AD2d at
789. This Court found that
Considering [the victimís] age, his frailty,
that he was in poor health, submissive and without resistance, and
the evidence of injuries to his chest area including his ribs, legs
and foot, the use of such force and pressure in gripping [the
victim] and in propelling him against the door could be found to be
evidence that defendant recklessly engaged in conduct which created
a grave risk of death to another under circumstances evincing a
depraved indifference to human life (Penal law 120.10).
In People v Murphy, 235 AD2d 933, 654 NYS2d 187 (3rd
Dept 1997), relied upon by the Court below, the Third Department upheld the
defendantís convictions for two counts of the intentional crime of
Attempted Murder 2nd Degree, but reversed convictions for
depraved indifference assault of the same two victims. 654 NYS2d at 191.
Since the facts showed that the defendant intentionally
struck each victim in the head two or three times with a hammer, the case is
qualitatively different from the other cases cited above in which depraved
indifference assault was upheld. Those cases where not charged alternatively
as intentional assaults. The Court in Murphy did not discuss the
possible contradiction between finding the defendant guilty of both
intentional (attempted murder) and reckless depraved (assault 1st)
crimes for the same conduct.
Failure to provide adequate medical care.
The courts have recognized that the failure to provide
adequate medical care, by a person who has a duty to provide it, is a
separate and distinct basis for a depraved mind murder or assault. In People
v Steinberg, 79 NY2d 673, 680, 584 NYS2d 770 (1992), the Court of
Appeals addressed acts of omission as the basis for criminal liability:
Penal Law provides that criminal liability may be based on an
omission (see, Penal Law 15.05), which is defined as the failure to
perform a legally imposed duty (Penal Law 15.00). Parents have a
nondelegable affirmative duty to provide their children with
adequate medical care (Matter of Hofbauer, 47 NY2d 648, 654-55;
Family Ct Act 1012[f][I][A]). Thus, a parentís failure to fulfill
that duty can form the basis of a homicide charge (see, People v
Flayhart, 72 NYS2d 737; People v Henson, 33 NY2d 63).
The duty to aid is imposed even on a non-parent who is
aware that a victim was seriously injured. See People v Knapp, 113
AD2d 154, 495 NYS2d 985 (3rd Dept 1985), US cert denied
479 US 844.
A defendant who brutally beat a woman, causing injuries
to her face and abdomen, then did not come to her assistance, instead
leaving her on the floor in a pool of blood while he watched television,
"could be found by the jury to go beyond the level of recklessness and
to evince a wanton indifference to human life." People v Gaudet,
115 AD2d 183, 495 NYS2d 253 (3rd Dept 1985).
Prepared in September 1999