Know the Law: Reckless
 Depraved Assault 1st

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.

In August,  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. 

The 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.

Assault 1st - Penal Law 120.10, sub 3:

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 serious physical injury to another person.

Serious Physical Injury - Penal Law 10.00, sub. 10:

Serious 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.

Physical Injury - Penal Law 10.00, sub. 9:

Physical 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. 

Brain 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 this way.

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?  

The 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? 

The following Memo of Law may help answer the defense challenges. . . . 



Depraved Indifference Assault

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 murder."

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 274.

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. . . .

However, the 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

Ď[t]he statutory risk was present the moment the victim lay unconscious on the pavement as a result of the defendantsí actions.í" (emphasis supplied) 84 NY2d at 163.

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 1st 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 upheld.

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[3]).


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:

        The 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[3]). 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