        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

9
KA 13-00189
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ODELL WILKENS, ALSO KNOWN AS ODELL WILKINS,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ODELL WILKENS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Erie County Court (Thomas P. Franczyk, J.), dated December 11,
2012. The order denied the motion of defendant pursuant to CPL 440.10
(1).

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Erie County Court for further
proceedings in accordance with the following memorandum:

     Defendant appeals from an order denying his pro se motion
pursuant to CPL article 440 seeking to vacate that part of a judgment
convicting him, following a jury trial, of depraved indifference
murder (Penal Law § 125.25 [2]). In his motion, defendant contended
that he was convicted of that crime in violation of his right to due
process under the state and federal constitutions (see CPL 440.10 [1]
[h]), inasmuch as the evidence at trial was legally insufficient to
establish that he acted with the requisite mens rea for depraved
indifference murder. Although defendant challenged the sufficiency of
the evidence on direct appeal and we affirmed (People v Wilkens, 8
AD3d 1074, lv denied 3 NY3d 683), defendant asserted in his motion
that the common law definition of “depraved indifference” was
thereafter changed in his favor by the Court of Appeals before his
judgment became final. County Court denied defendant’s motion without
a hearing, concluding that the law regarding depraved indifference
murder did not change until People v Feingold (7 NY3d 288), which was
decided after defendant’s judgment became final. We do not agree with
the court’s determination in that regard, and we therefore remit the
matter to County Court for a ruling on the merits of defendant’s
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                                                         KA 13-00189

motion.

     On July 31, 2001, defendant shot and killed the victim at a
recreation center in Buffalo. The shooting occurred after defendant
argued with the victim over whose team would play the next game of
basketball. Following the argument, defendant left the recreation
center and then returned approximately 10 minutes later with a loaded
handgun, which he used to shoot the victim once in the torso from
close range. The bullet passed through the victim’s kidney, liver,
diaphragm and aorta, causing his death. No other shots were fired.
Defendant was thereafter arrested and charged with intentional murder,
depraved indifference murder, and criminal possession of a weapon in
the second degree. At trial, defendant testified that the shooting
was accidental, and that the gun somehow discharged while he was
struggling with the victim. The jury acquitted defendant of
intentional murder but convicted him of depraved indifference murder
and the weapons offense.

     On appeal, we concluded that, because defendant made only a
general motion for a trial order of dismissal, his challenge to the
sufficiency of the evidence was not preserved for our review (Wilkens,
8 AD3d at 1074-1075). We further concluded that, in any event,
defendant’s contention lacked merit. We wrote in relevant part: “We
reject defendant’s contention that the evidence supports only a theory
of intentional murder and not depraved indifference murder (see e.g.
People v Gonzalez, 1 NY3d 464 [2004]). Although the evidence at trial
could support the conclusion that defendant intended to kill the
victim, it also could support the conclusion that, under circumstances
evincing a depraved indifference to human life, defendant recklessly
engaged in conduct that created a grave risk of death to another
person (see Penal Law § 125.25 [2])” (id. at 1075). On August 4,
2004, the Court of Appeals denied defendant’s application for leave to
appeal, meaning that the judgment became final 90 days later, on
November 2, 2004 (see Policano v Herbert, 7 NY3d 588, 593).

     At the time of defendant’s trial, in 2002, the elements of
depraved indifference murder were defined by People v Register (60
NY2d 270, cert denied 466 US 953), which held that the statutory
language “under circumstances evincing a depraved indifference to
human life” did not identify a culpable mental state, or mens rea;
instead, the “depraved indifference” language stated “a definition of
the factual setting in which the risk creating conduct must occur”
(id. at 276). In other words, recklessness was the mens rea for
depraved indifference murder (see Policano, 7 NY3d at 597). Beginning
in 2003, however, the Court decided a series of cases — including
People v Hafeez (100 NY2d 253), People v Payne (3 NY3d 266, rearg
denied 3 NY3d 767) and People v Suarez (6 NY3d 202) — that culminated
in 2006 with People v Feingold (7 NY3d 288), which explicitly
overruled Register and held that “depraved indifference to human life
is a culpable mental state” (id. at 294). Defendant’s judgment became
final after Hafeez and Payne but before Suarez and Feingold.

     As noted, the motion court determined that the law regarding
depraved indifference murder did not change until Feingold, and that
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                                                         KA 13-00189

defendant is therefore not entitled to any benefit under the new law.
We agree with the Third Department, however, that “the law changed on
October 19, 2004, when the Court decided People v Payne” (People v
Baptiste, 51 AD3d 184, 185, lv denied 10 NY3d 932; see generally Epps
v Poole, 687 F3d 46, 55, cert denied ___ US ___, 133 S Ct 1499;
Baptiste v Ercole, 766 F Supp 2d 339, 353-355). Indeed, it was in
Payne that the Court of Appeals first held that, absent unusual
circumstances, “a one-on-one shooting or knifing (or similar killing)
can almost never qualify as depraved indifference murder” (3 NY3d at
272). Although the new law on depraved indifference murder does not
apply retroactively to judgments that became final prior to the change
(see Policano, 7 NY3d at 603-604), defendant’s judgment of conviction
did not become final until after Payne was decided.

     We therefore hold the case, reserve decision and remit the matter
to County Court for a ruling on the merits of defendant’s motion.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
