         10-4478-pr
         Gutierrez v. Smith
 1 
 2                            UNITED STATES COURT OF APPEALS
 3                                FOR THE SECOND CIRCUIT
 4 
 5                                        August Term, 2011
 6 
 7                  (Argued: February 17, 2012             Decided: August 31, 2012)
 8 
 9                                      Docket No. 10-4478-pr
10 
11 
12                                      OMAR GUTIERREZ,
13 
14                                        Petitioner-Appellant,
15 
16                                                – v. –
17 
18                                        JOSEPH SMITH,
19 
20                                        Respondent-Appellee.
21 
22 
23 
24    Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.
25 
26            Omar Gutierrez appeals from the denial of a petition for a writ of habeas corpus in
27    which he argued that the evidence at trial was insufficient to support his conviction for
28    depraved indifference murder under New York law. We conclude that the district court
29    (Feuerstein, J.), of the Eastern District of New York, erred in denying the petition as
30    procedurally barred, but that the merits of the underlying legal insufficiency claim turn on
31    significant and unsettled questions of New York law, which we certify to the New York
32    Court of Appeals as stated in Part II.B of this opinion.
33           Chief Judge JACOBS concurs in a separate opinion.

34                                       JACQUELINE P. RUBIN (Janna Berke, on the brief),
35                                       Paul, Weiss, Rifkind, Wharton & Garrison LLP, New
36                                       York, N.Y., for Petitioner-Appellant.
37 
38                                       GLENN GREEN, Assistant District Attorney, for
39                                       Thomas J. Spota, District Attorney, Suffolk County,
40                                       Riverhead, N.Y., for Respondent-Appellee.
41 
42 


                                              1
 1    CALABRESI, Circuit Judge:

 2           During a bar brawl, Petitioner-Appellant Omar Gutierrez chased John Villaplana

 3    and fatally stabbed him in the chest. Gutierrez was convicted of depraved indifference

 4    murder under New York Penal Law § 125.25(2), and sentenced to twenty-five years to life

 5    in prison. After the Appellate Division affirmed Gutierrez’s conviction and his application

 6    for leave to appeal to the New York Court of Appeals was denied, Gutierrez filed a timely

 7    petition for a writ of habeas corpus in the United States District Court for the Eastern

 8    District of New York. In his petition, Gutierrez argued, inter alia, that the evidence

 9    introduced at trial was legally insufficient to support his conviction. The district court

10    (Feuerstein, J.), relying on the state court’s finding that counsel failed to make a

11    contemporaneous objection at trial to the legal sufficiency of the evidence, dismissed the

12    petition as procedurally barred. We hold that, though the claim was procedurally defaulted,

13    it is nonetheless cognizable on habeas review. Since there was a fundamental shift in New

14    York’s interpretation of its depraved indifference murder statute between the time of

15    Gutierrez’s trial in 2001 and the time his conviction became final in 2005, the legal basis for

16    a sufficiency challenge was not reasonably available to counsel at the time of trial,

17    establishing “cause” for the failure to object. Accordingly, we REVERSE the district court’s

18    dismissal of the petition.

19           Our review of the merits of Petitioner’s claim, however, brings unsettled issues of

20    New York law to the forefront: (a) just how much of what kind of evidence supports

21    depraved indifference convictions in New York, and (b) whether the change in New York’s

22    law on depraved indifference murder applies retroactively to defendants like Gutierrez.

23    Because we believe the New York Court of Appeals should be given the opportunity to




                                                    2
 1    address these recurring and important questions of New York State law, we CERTIFY

 2    them to the New York Court of Appeals.

 3                                       I.     BACKGROUND

 4       A. Factual Background and Procedural History

 5             The facts are not in dispute. On June 13, 1999, Petitioner was involved in a bar brawl

 6    in Montauk, Long Island. Gutierrez was at Rick’s Crabby Cowboy Café (“Rick’s”) when a

 7    fight broke out between different groups of patrons. The fight escalated and later continued

 8    outside the bar into Rick’s parking lot where Gutierrez stabbed Narcisso Luis Villaplana.

 9    Gutierrez then pursued John Villaplana to a nearby driveway. There, Gutierrez fatally

10    stabbed John Villaplana in his chest, producing two wound tracks. The presence of two

11    wound tracks might be the result of a retraction and reinsertion of the knife, but could also

12    indicate “the victim moving back, and then the victim for some reason going forward

13    again.” According to trial testimony, Gutierrez fled the scene when a car approached, while

14    Villaplana was still on his feet. The first wound, which passed through Villaplana’s heart,

15    was three and three-quarters inches deep, and the second, which pierced his lung, was two

16    and three-quarters inches deep. Though Villaplana also sustained an injury as a result of

17    striking his head on the ground, autopsy results confirmed that a stab wound caused his

18    death.

19             Gutierrez was charged with: (a) murder in the second degree in violation of New

20    York Penal Law § 125.25(1) (intentional murder) and New York Penal Law § 125.25(2)

21    (depraved indifference murder) in connection with John Villaplana’s fatal stabbing, and

22    (b) assault in the third degree in violation of New York Penal Law § 120.00(2) in connection

23    with Narcisso Luis Villaplana’s stabbing. At trial, Gutierrez’s counsel moved to dismiss the



                                                     3
 1    depraved indifference murder charge, on the ground that, “as a matter of law, . . . there

 2    [was] insufficient evidence to prove a prima facie case.” The trial judge denied the motion,

 3    and the jury convicted Gutierrez of depraved indifference murder and assault in the third

 4    degree, but acquitted him of intentional murder. Gutierrez was sentenced to an

 5    indeterminate term of imprisonment of twenty-five years to life on the depraved indifference

 6    conviction and to a concurrent determinate term of imprisonment of one year on the assault

 7    conviction.

 8              On direct appeal, Petitioner argued, inter alia, that there was insufficient evidence to

 9    support a depraved indifference murder conviction and that New York Penal Law

10    § 125.25(2) was unconstitutionally vague. On February 14, 2005, the Appellate Division

11    affirmed Gutierrez’s conviction and sentence, concluding that his legal insufficiency claim

12    was “unpreserved for appellate review,” and that some of Gutierrez’s other contentions

13    were “either . . . unpreserved for appellate review or without merit.” People v. Gutierrez, 15

14    A.D.3d 502, 503 (N.Y. App. Div. 2d Dep’t 2005). On June 14, 2005, Judge Smith, of the

15    New York Court of Appeals, denied Gutierrez’s application for leave to appeal to that

16    court. See People v. Gutierrez, 5 N.Y.3d 763 (2005).

17              On September 12, 2006, pursuant to New York Criminal Procedure Law § 440.10,

18    Gutierrez filed a motion to vacate his conviction. After the trial court denied the motion, see

19    People v. Gutierrez, 836 N.Y.S.2d 488 (Suffolk Cnty. Ct. 2007) (unpublished table decision),

20    and the Appellate Division affirmed, see People v. Gutierrez, 57 A.D.3d 1006 (N.Y. App. Div.

21    2d Dep’t 2008), Judge Smith of the New York Court of Appeals once again denied

22    Gutierrez’s application for leave to appeal to that court, see People v. Gutierrez, 12 N.Y.3d 816

23    (2009).



                                                       4
 1           On September 12, 2006, Gutierrez also filed a petition for a writ of habeas corpus

 2    pursuant to 28 U.S.C. § 2254. The district court initially stayed the proceedings to permit

 3    Gutierrez to pursue his section 440.10 motion, after which Gutierrez filed an amended

 4    petition, arguing: (1) that the evidence presented at trial was legally insufficient to support

 5    his conviction for depraved indifference murder; (2) that his trial counsel was ineffective for

 6    failing to make a specific objection to the legal insufficiency of the evidence at trial; and

 7    (3) that New York Penal Law § 125.25(2) was unconstitutionally vague. See Gutierrez v.

 8    Smith, No. 06-CV-4939, 2010 U.S. Dist. LEXIS 102137, at *8 (E.D.N.Y. Sept. 27, 2010). In

 9    September 2010, the district court denied Gutierrez’s petition and declined to issue a

10    certificate of appealability. See id. at *30-*31. On March 16, 2011, we granted Gutierrez’s

11    motion for a certificate of appealability “with respect to [Gutierrez’s] claim that the evidence

12    was legally insufficient to support his conviction for depraved indifference murder in

13    violation of New York Penal Law § 125.25(2).”

14       B. The Evolution of “Depraved Indifference” Law in New York

15           “Depraved indifference” murder is a type of second degree murder in New York.

16    Specifically, New York Penal Law § 125.25(2) provides that a person is guilty of murder in

17    the second degree when “[u]nder circumstances evincing a depraved indifference to human

18    life, he recklessly engages in conduct which creates a grave risk of death to another person,

19    and thereby causes the death of another person.” At the time of Gutierrez’s trial in 2001, the

20    law on depraved indifference murder was governed by People v. Register, 60 N.Y.2d 270

21    (1983). In Register, the defendant entered a crowded bar with a loaded gun. Id. at 273. After

22    entering the bar and threatening to “kill somebody,” id. at 275, he ultimately killed one man

23    and seriously injured two others, id. at 273-74. The Court of Appeals announced that the



                                                     5
 1    requisite mens rea for depraved indifference murder was “recklessness,” id. at 278, and held

 2    that the crime required a showing of “circumstances evincing a depraved indifference to

 3    human life,” id. at 274 (quoting N.Y. Penal Law § 125.25(2)). In upholding the trial court’s

 4    refusal to instruct the jury that the defendant’s intoxication could negate a showing of

 5    depraved indifference, the Court noted that “the focus of the offense is not upon the

 6    subjective intent of the defendant, as it is with intentional murder, but rather upon an

 7    objective assessment of the degree of risk presented by defendant’s reckless conduct.” Id. at

 8    277 (citation omitted). In that vein, the Court reasoned that “depraved mind murder is

 9    distinguishable from manslaughter, not by the mental element involved but by the objective

10    circumstances in which the act occurs.” Id. at 278.

11           According to the Court of Appeals, the law as articulated in Register “remained

12    static” until its decision in People v. Sanchez, 98 N.Y.2d 373 (2002). Policano v. Herbert, 7

13    N.Y.3d 588, 595 (2006). Critically, Sanchez was decided in 2002, after Gutierrez’s trial and

14    conviction. In Sanchez, a 4–3 decision that produced three dissents, a divided Court of

15    Appeals rejected the defendant’s argument that his conduct “was consistent only with an

16    intentional killing” and therefore could not sustain a conviction for depraved indifference

17    murder. 98 N.Y.2d at 376. The Court thus reaffirmed Register, reiterating that “the

18    requirement of circumstances evincing a depraved indifference to human life under [New

19    York] Penal Law § 125.25 (2) murder focuses not on the subjective intent of the defendant,

20    ‘but rather upon an objective assessment of the degree of risk presented by defendant’s

21    reckless conduct.’” Id. at 379-80 (quoting Register, 60 N.Y.2d at 277). But Sanchez, in time,

22    proved more notable for the presence of the three separate dissents in the seven person

23    Court of Appeals, than for its majority opinion. The dissents, emphasizing “the problems



                                                    6
 1    attendant to using a charge of depraved indifference as a proxy for intentional murder,” id.

 2    at 388 (Smith, J., dissenting), would have “overrule[d] Register expressly and restore[d]

 3    depraved indifference as the key mens rea element,” id. at 415 (Rosenblatt, J., dissenting).

 4                  After Sanchez, New York law continued to evolve while Gutierrez’s case was on

 5    direct appeal. Three cases in particular—People v. Hafeez, 100 N.Y.2d 253 (2003), People v.

 6    Gonzalez, 1 N.Y.3d 464 (2004), and People v. Payne, 3 N.Y.3d 266 (2004)—all decided before

 7    Gutierrez’s conviction became final on September 12, 2005,1 moved New York law away

 8    from the holding in Register as reaffirmed by a bare majority in Sanchez. In Hafeez, decided

 9    on June 10, 2003, which involved yet another incident at a bar, the Court of Appeals held

10    that a codefendant’s “conduct was consistent with intentional murder as opposed to

11    depraved indifference murder.” 100 N.Y.2d at 258. In Gonzales, decided on March 25, 2004,

12    the court again found the evidence legally insufficient to support a conviction for depraved

13    indifference murder, holding that “[t]he only reasonable view of the evidence here was that

14    defendant intentionally killed the victim by aiming a gun directly at him and shooting him

15    10 times at close range, even after he had fallen to the ground.” 1 N.Y.3d at 467. The Court

16    reasoned that “a person cannot act both intentionally and recklessly with respect to the same

17    result,” id. at 468; that when “a defendant’s conduct is specifically designed to cause the

18    death of the victim, it simply cannot be said that the defendant is indifferent to the

19    consequences of his or her conduct,” id. at 467. The Court went further and explained that

20    “[d]epraved indifference murder does not mean an extremely, even heinously, intentional

21    killing,” but instead “involves a killing in which the defendant does not have a conscious

                                                                  
      1
        In New York, a petitioner’s conviction becomes final ninety days after leave to appeal to the Court of
      Appeals is denied. See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). Here, the Appellate Division
      affirmed Gutierrez’s conviction on February 14, 2005, and Judge Smith of the Court of Appeals denied leave
      to appeal to that court on June 14, 2005.


                                                                     7
 1    objective to cause death but instead is recklessly indifferent, depravedly so, to whether death

 2    occurs.” Id. at 468.

 3           Finally, Payne, decided on October 19, 2004, which involved a shooting at point-

 4    blank range, firmly established the principle that “[a]bsent the type of circumstances in, for

 5    example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or

 6    similar killing) can almost never qualify as depraved indifference murder.” 3 N.Y.3d at 272.

 7    Focusing on the difference between depraved indifference murder and intentional murder,

 8    the Court held that “[t]he use of a weapon can never result in depraved indifference murder

 9    when . . . there is a manifest intent to kill.” Id. at 271. Further, it noted that “[f]iring more

10    rounds or inflicting more wounds does not make the act more depravedly indifferent, but

11    more intentional.” Id. at 272.

12           After Gutierrez’s conviction became final on September 12, 2005, the law moved

13    even further in the same direction. People v. Suarez, decided on December 22, 2005,

14    underscored Payne and held that “a defendant who intends to injure or kill a particular

15    person cannot generally be said to be ‘indifferent’—depravedly or otherwise—to the fate of

16    that person.” 6 N.Y.3d 202, 211 (2005). Finally, the development which began with the

17    dissents in Sanchez culminated in People v. Feingold, decided on July 5, 2006. 7 N.Y.3d 288

18    (2006). There, the Court of Appeals expressly overruled Register and Sanchez and concluded

19    that depraved indifference referred to a mental state. Id. at 294. In other words, the Court

20    held that a jury could not rely solely on objective circumstances to support a conviction for

21    depraved indifference murder. Surveying its case law beginning with Hafeez, the Court

22    concluded that “the law ha[d] changed to such an extent” that Register and Sanchez “should

23    no longer be followed.” Id.



                                                     8
 1                                         II.    DISCUSSION

 2           The Court reviews a district court’s ruling on a habeas petition de novo. See Thibodeau

 3    v. Portuondo, 486 F.3d 61, 64 (2d Cir. 2007).

 4       A. Procedural Default

 5           New York’s contemporaneous objection rule requires a party to object to what he or

 6    she believes is a legal error in a trial court’s ruling or instruction “at the time of such ruling

 7    or instruction or at any subsequent time when the court had an opportunity of effectively

 8    changing the same.” N.Y. Crim. Proc. Law § 470.05(2). Where a party fails to lodge such a

 9    contemporaneous objection, the issue is unpreserved for appeal because of the party’s

10    procedural default. “If a state appellate court refuses to review the merits of a criminal

11    defendant’s claim of constitutional error because of his failure to comply with such a

12    ‘contemporaneous objection’ rule, a federal court generally may not consider the merits of

13    the constitutional claim on habeas corpus review.” Peterson v. Scully, 896 F.2d 661, 663 (2d

14    Cir. 1990) (citing Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977)); see also Harris v. Reed, 489

15    U.S. 255, 260 (1989) (explaining that federal habeas review is barred if the constitutional

16    claim was denied by a state court on a state procedural “ground that is both ‘independent’ of

17    the merits of the federal claim and an ‘adequate’ basis for the court’s decision”).

18           The Supreme Court, however, has carved out two exceptions to this bar on habeas

19    review of procedurally defaulted claims. “Where a petitioner has procedurally defaulted a

20    claim by failing to raise it on direct review, the claim may be raised in habeas only if the

21    petitioner can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually

22    innocent.’” DiSimone v. Phillips, 461 F.3d 181, 190 (2d Cir. 2006) (brackets omitted) (quoting




                                                      9
 1    Bousley v. United States, 523 U.S. 614, 622 (1998)); see also Murray v. Carrier, 477 U.S. 478,

 2    485, 496 (1986).

 3                  Gutierrez concedes that his counsel lodged only a general objection to the legal

 4    sufficiency of the evidence at trial, Gutierrez, 2010 U.S. Dist. LEXIS 102137, at *4 n.3,

 5    which the Appellate Division deemed insufficient to preserve the issue for appellate review,

 6    Gutierrez, 15 A.D.3d at 503. On habeas review, therefore, we can only reach the merits of

 7    Gutierrez’s legal insufficiency claim if he can establish either “cause” and “prejudice” or

 8    “actual innocence.” We conclude that Gutierrez adequately demonstrates “cause” for his

 9    trial counsel’s failure to lodge a specific objection and “prejudice” from that failure.2

10                  There are two related ways to establish “cause.” First, if some objective factor,

11    external to Petitioner’s defense, interfered with his ability to comply with the state’s

12    procedural rule, the cause requirement is met. See McCleskey v. Zant, 499 U.S. 467, 493

13    (1991). An example of such an objective impediment is “a showing that the factual or legal

14    basis for a claim was not reasonably available to counsel” at the time of trial. Strickler v.

15    Greene, 527 U.S. 263, 283 n.24 (1999). Relatedly, futility may constitute cause “where prior

16    state case law has consistently rejected a particular constitutional claim.” DiSimone, 461

17    F.3d at 191. But “futility cannot constitute cause if it means simply that a claim was

18    unacceptable to that particular court at that particular time.” Bousley, 523 U.S. at 623

19    (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)) (internal quotation marks omitted).

                                                                  
      2
         For purposes of this case, we are assuming arguendo that the contention of actual innocence made by
      Petitioner would fail. We do this because we find cause and prejudice and need not find a successful claim of
      actual innocence in order to excuse the procedural bar. We note, however, that the issue of actual innocence in
      circumstances like the one before us has been treated differently by various federal courts. See generally Schlup v.
      Delo, 513 U.S. 298 (1995). Compare Johnson v. Bellnier, No. 09-CV-00381 (KAM) (RER), 2011 U.S. Dist.
      LEXIS 82104, at *30-*44 (E.D.N.Y. July 27, 2011), and Fernandez v. Smith, 558 F. Supp. 2d 480, 494
      (S.D.N.Y. 2008), with Gutierrez v. Smith, No. 06-cv-4939, 2010 U.S. Dist. LEXIS 102137, at *23-*30 (E.D.N.Y.
      Sept. 27, 2010), and Orcutt v. Fillion, No. 09-cv-205, 2010 U.S. Dist. LEXIS 66962, at *14-*17 (N.D.N.Y. June
      9, 2010), report and recommendation adopted by 2010 U.S. Dist. LEXIS 66975 (N.D.N.Y. July 6, 2010).


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 1           The “prejudice” requirement is met by establishing “actual prejudice resulting from

 2    the errors of which [Petitioner] complains.” United States v. Frady, 456 U.S. 152, 168 (1982)

 3    (internal quotation marks omitted). The error must have resulted in “substantial

 4    disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Murray,

 5    477 U.S. at 494 (quoting Frady, 456 U.S. at 170) (internal quotation mark omitted).

 6           On appeal, Gutierrez offers two explanations for counsel’s failure to object

 7    specifically to the legal sufficiency of his depraved indifference murder conviction. First, he

 8    argues that any objection by counsel would have been futile because the controlling law, i.e.,

 9    Register, would have rendered the objection baseless. Second, he asserts that the legal basis

10    of his claim was unavailable at the time of trial and that this constituted an objective factor

11    external to his defense.

12           These “cause” arguments are both predicated on the claim (a) that New York law on

13    depraved indifference murder changed drastically after Gutierrez’s trial in 2001, and (b) that

14    he should not be penalized for his failure to anticipate that change. We had occasion to

15    consider a virtually identical argument in DiSimone, where the petitioner argued “that it

16    would have been futile to make an insufficiency argument on direct appeal,” 461 F.3d at

17    191, and more recently in Brown v. Ercole, 353 F. App’x 518, 519 (2d Cir. 2009) (summary

18    order). In both cases we rejected the argument, finding that “cause” could not be

19    established. Indeed, the district court in the instant case, in declining to reach the merits of

20    Gutierrez’s claim, relied on our decision in Brown. But there is a fundamental difference

21    between DiSimone and Brown, on one side, and the case before us, on the other. It is, quite

22    simply, that Gutierrez’s trial occurred in 2001, before Sanchez was decided, while counsel in

23    DiSimone and Brown had the benefit of Sanchez.



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 1           In DiSimone, we explicitly noted that, at the time of the petitioner’s appeal, Sanchez

 2    had produced three separate dissents, providing a legal basis to counsel for a sufficiency

 3    challenge. DiSimone, 461 F.3d at 191. At the time of Brown’s trial, in addition to Sanchez, at

 4    least two New York appellate courts, see Hafeez, 100 N.Y.2d at 258-59; People v. Gonzalez,

 5    302 A.D.2d 870, 871-72 (N.Y. App. Div. 4th Dep’t 2003), had reversed depraved

 6    indifference murder convictions on grounds that subsequently came to reflect New York law

 7    on depraved indifference murder. For these reasons, we held that counsel in both DiSimone

 8    and Brown were on notice that the law was no longer static and that counsel could

 9    reasonably have argued that the evidence presented by the state in their cases was legally

10    insufficient to support a conviction for depraved indifference murder.

11           In stark contrast, Gutierrez’s trial was held in 2001, before Sanchez was decided,

12    before the appellate courts reversed the convictions in Hafeez and Gonzalez, and when Register

13    was unquestionably still considered the law of New York. Given that the Register

14    interpretation was firmly ingrained in New York at the time of Petitioner’s trial in 2001, any

15    legal sufficiency objection by Gutierrez would have been legally futile.

16           Similarly, we hold that the legal basis for a sufficiency claim was not available to

17    counsel at the time of Gutierrez’s trial as Register still controlled. When Gutierrez was tried,

18    counsel could not be obliged to challenge preemptively the conviction based on what then

19    was a totally unforeseeable development in the law. The shift in New York law that

20    occurred after Petitioner’s trial constituted an “objective factor external to the defense [that]

21    impeded counsel’s efforts to comply with the State’s procedural rule.” Strickler, 527 U.S. at

22    283 n.24; see also id. (“not[ing] that a showing that the factual or legal basis for a claim was

23    not reasonably available to counsel . . . would constitute cause under this standard”).



                                                     12
 1    Accordingly, Gutierrez establishes “cause” for counsel’s failure to make a contemporaneous

 2    objection at trial.

 3           The “prejudice” requirement is also met. The difference between a conviction for

 4    murder in the second degree and one for manslaughter is substantial, the former carrying a

 5    significantly higher potential term of imprisonment. Thus, the submission of a depraved

 6    indifference murder charge to the jury worked to Petitioner’s “actual and substantial

 7    disadvantage,” Roccisano v. Menifee, 293 F.3d 51, 59 (2d Cir. 2002) (emphasis omitted),

 8    because it allowed the jury to convict him of a crime for which the availability of legally

 9    sufficient evidence was dubious at best. See Reed v. Ross, 468 U.S. 1, 12 (1984). Indeed, it is

10    still dubious enough to justify our certifying the question, in this case, to the New York

11    Court of Appeals.

12       B. Merits of Gutierrez’s Legal Insufficiency Claim

13           “[I]n a challenge to a state criminal conviction brought under 28 U.S.C.

14    § 2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the record

15    evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond

16    a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). When considering the

17    sufficiency of the evidence of such a state conviction, a federal court “must consider the

18    evidence in the light most favorable to the prosecution and make all inferences in its favor,”

19    and, in doing this, “must look to state law to determine the elements of the crime.” Fama v.

20    Comm’r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000).

21           The change in New York law on depraved indifference murder has created a series of

22    problems for federal courts on habeas review. Since the questions these cases raise are ones

23    that are profoundly of New York law, when New York courts have spoken on the merits of



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 1    a conviction for depraved indifference murder and on whether the evidence in a particular

 2    case was legally sufficient, we have tended to defer to that judgment. See, e.g., Epps v. Poole,

 3    2012 U.S. App. LEXIS 12795, at *3-*4 (2d Cir. June 21, 2012). We have done so because,

 4    ultimately, how New York wishes to define depraved indifference murder is a question for

 5    New York. Difficulties arise, however, when, as in this case, New York affirms the

 6    conviction on procedural grounds that are not in keeping with federal requirements. For

 7    then we are left to judge a conviction that New York courts have not evaluated on the

 8    merits.3

 9                  And the merits of depraved indifference cases are hard to resolve in the first instance

10    given the current state of New York law. There is, however, a way for us to become better

11    informed as to how New York views a case like this one. New York law—in tandem with

12    Second Circuit Local Rule 27.2(a)—permits us to certify to New York’s highest court

13    “determinative questions of New York law [that] are involved in a case pending before [us]

14    for which no controlling precedent of the Court of Appeals exists.” N.Y. Comp. Codes R. &

15    Regs. tit. 22, § 500.27(a). We believe that this case presents issues as to which guidance from

16    New York’s highest court would be helpful.

17                  There are two questions as to which the highest court of New York has previously

18    spoken in ways that would suggest that Gutierrez’s conviction cannot stand on the merits,

19    but as to which lower New York courts have reacted in ways that leave us in doubt as to

20    what New York law really is. The most important of these questions goes to just how much


                                                                  
      3
        The concurring opinion suggests that the rejection of Gutierrez’s weight of the evidence claim in state court
      could be viewed as a judgment by New York courts on whether the evidence is legally sufficient. Would that
      were so. Under New York law, it appears that the decision on the weight of the evidence was limited to the
      law as it existed at the time of trial, and did not take into account the subsequent change in New York’s
      depraved indifference law. Accordingly, and unfortunately, the record before us does not disclose a state court
      determination on the merits to which we can accord deference.  


                                                                     14
 1    of what kind of evidence is sufficient to convict a defendant of depraved indifference

 2    murder. We have no doubt that, applying the law at the time of Gutierrez’s trial as

 3    articulated in Register, there was sufficient evidence to sustain a conviction for depraved

 4    indifference murder. But applying the law at the time Gutierrez’s conviction became final,

 5    the result is much less clear.4 At the latter time, Petitioner gets the benefit of Hafeez, of

 6    Gonzalez, and, most notably, of Payne.

 7                  Payne instructs that “a one-on-one shooting or knifing . . . can almost never qualify as

 8    depraved indifference murder.” 3 N.Y.3d at 272 (emphasis added). Gutierrez argues that, by

 9    stabbing a single individual in the chest, he engaged in intentional conduct inconsistent with

10    the mens rea for depraved indifference murder. As the State points out, however, there are

11    additional considerations at play in the case before us: there was ongoing animus between

12    different groups of patrons at the bar on the night of the stabbings, a violent fight broke out

13    involving several individuals, Gutierrez chased and stabbed another individual just minutes

14    before the fatal stabbing, and Gutierrez had no prior relationship or personal disagreement

15    with either victim. We are not sure whether New York would view these facts as sufficient

16    to support a jury finding of reckless conduct consistent with depraved indifference murder.

17    Moreover, since New York never evaluated Gutierrez’s claim on the merits, there might

18    very well be other facts that support Appellee’s assertion that Gutierrez acted recklessly that




                                                                  
      4
        The State argues that at the time Gutierrez’s conviction became final on September 12, 2005, the Register
      standard controlled, because the law on deliberate indifference murder only changed in Feingold, which was
      decided in 2006. But both this court and the New York Court of Appeals have rejected the notion that Feingold
      changed the law. See Henry v. Ricks, 578 F.3d 134, 139 (2d Cir. 2009); Policano, 7 N.Y.3d at 602-03. Feingold
      merely made explicit what Hafeez, Gonzalez, and Payne had already accomplished. Indeed, in Policano, the
      Court of Appeals acknowledged that prior cases, beginning with Hafeez, represented “a perceptible, evolving
      departure from the underpinnings of depraved indifference murder as expressed in Register and Sanchez.” 7
      N.Y.3d at 603.


                                                                     15
 1    night. As a result, we seek guidance from New York on whether Gutierrez’s conduct

 2    sufficed to allow a jury to convict him of depraved indifference murder.

 3           Another question also troubles us: Who gets the benefit of the change in New York’s

 4    interpretation of its depraved indifference murder statute? We are not completely certain

 5    whether the law articulated in Payne (and ultimately, Feingold) applies retroactively to

 6    defendants tried at the time Register controlled but whose appeals were not yet final when

 7    those decisions were handed down, or whether it only applies prospectively to those

 8    defendants tried and sentenced after the decisions were rendered. This question, on its own,

 9    would not be worth certifying because the Court of Appeals has spoken on the issue. In

10    Feingold itself, though the defendant had been convicted in November 2004, the Court of

11    Appeals applied the new interpretation of the depraved indifference statute to that

12    defendant. 7 N.Y.3d at 296-97. More than two years after Feingold, in People v. Jean-Baptise,

13    11   N.Y.3d    539   (2008),   the     Court   of   Appeals   confronted   the   question   of

14    “whether . . . Feingold applies only prospectively to those defendants sentenced after that

15    decision was rendered or whether that decision should apply to cases, such as the one now

16    before us, which are pending on direct appeal.” Id. at 542. The Court held that “the

17    standard as articulated in Feingold should apply to cases brought on direct appeal in which

18    the defendant has adequately challenged the sufficiency of the proof as to his depraved

19    indifference murder conviction.” Id.

20           Jean-Baptiste notwithstanding, New York courts continue to wrestle with the question

21    of the retroactive application of Feingold. Most recently, in People v. Snyder, 91 A.D.3d 1206

22    (N.Y. App. Div. 3d Dep’t 2012), the Appellate Division, Third Department, though

23    unanimously affirming the defendant’s conviction, split three to two on whether the



                                                     16
 1    defendant was entitled to review under Feingold or Register. The majority, citing Jean-Baptise,

 2    concluded that because the “[d]efendant’s direct appeal was pending when [the] change in

 3    the law occurred,” the legal sufficiency claim should be decided “in accord with the law as it

 4    now exists [as stated in Feingold].” Snyder, 91 A.D.3d at 1211 (citing Jean-Baptiste, 11 N.Y.3d

 5    at 541-42). The concurrence, though acknowledging Jean-Baptise, disagreed, concluding that

 6    “the legal sufficiency of the evidence supporting [the defendant’s] convictions should be

 7    reviewed in light of the law as it existed at the time of trial.” Id. at 1215-16 (Stein, J.,

 8    concurring). In view of the existence of this very close decision in which the concurrence

 9    cited and, in effect, deemed inapplicable what the Court of Appeals seemed to have said in

10    Jean-Baptiste—and given that we are certifying the case on the issue of the sufficiency of the

11    evidence—we seek guidance on this question as well.

12           We believe that these two questions of New York law are best left to New York.

13    Resolution of these questions “requires value judgments and important public policy choices

14    that the New York Court of Appeals is better situated than we to make,” Penguin Grp. (USA)

15    Inc. v. Am. Buddha, 609 F.3d 30, 42 (2d Cir. 2010); the relevant New York cases make it

16    difficult for us “to predict how the Court of Appeals would resolve” these questions, id.; and

17    these questions are “determinative of [the] claim before us,” O’Mara v. Town of Wappinger,

18    485 F.3d 693, 698 (2d Cir. 2007) (internal quotation mark omitted). We therefore offer the

19    New York Court of Appeals the opportunity to guide us, should it opt to do so. Should the

20    New York Court of Appeals choose to grant certification, we, as we always do when we

21    certify, invite it to address any other issues it deems germane to the questions certified. And

22    in particular, we invite the Court of Appeals to address the questions posed in Chief Judge

23    Jacobs’ concurring opinion.



                                                    17
 1           Let us be clear: We, as a federal court, are reluctant to release defendants whose

 2    defense to depraved indifference murder is that they were guilty of intentional murder,

 3    where those defendants were acquitted of intentional murder and convicted of depraved

 4    indifference murder at a time when New York seemed to permit this. We will, of course,

 5    follow the law of New York. But before we order the release of such defendants, we wish to

 6    be sure that this is the result New York wants.

 7                                      III.    CONCLUSION

 8           For the foregoing reasons, we REVERSE the district court’s finding that Petitioner’s

 9    legal insufficiency claim was procedurally defaulted. But since resolution of the merits of

10    that claim turns on unresolved and recurring issues of New York state law, we certify the

11    following questions to the New York Court of Appeals:

12           QUESTIONS CERTIFIED:

13           (1) Is the defendant’s conduct in this case sufficient to convict him of

14              depraved indifference murder?

15           (2) Does People v. Payne apply retroactively to defendants convicted of

16              depraved indifference murder when People v. Register still controlled, but

17              whose appeals were still pending when Payne was decided?

18           It is hereby Ordered that the Clerk of Court transmit to the Clerk of the New York

19    Court of Appeals a Certificate in the form attached, together with a copy of this opinion and

20    a complete set of the briefs, appendices, and record filed by the parties in this Court. This

21    panel will retain jurisdiction to decide the case once we have had the benefit of the views of

22    the New York Court of Appeals, or once that court declines certification.

23           REVERSED in part. Decision RESERVED in part.



                                                   18
DENNIS JACOBS, Chief Judge, concurring:


    I concur in the panel’s decision to certify questions

to the New York Court of Appeals.   Answers to those

questions will provide clarity and finality to a subject

that this Court has frequently revisited.   See Epps v.

Poole, 687 F.3d 46 (2d Cir. 2012); Garbutt v. Conway, 668

F.3d 79 (2d Cir. 2012); Parker v. Ercole, 666 F.3d 830 (2d

Cir. 2012); Rivera v. Cuomo, 664 F.3d 20 (2d Cir. 2011);

Policano v. Herbert, 507 F.3d 111 (2d Cir. 2007).      I write

separately to emphasize the limited scope of this Court’s

review under § 2254, and to register some disagreement with

the majority’s exposition of depraved indifference

jurisprudence and its retroactive application.   The

diverging view of New York law expressed in this opinion

will, I hope, reinforce the view that clarification is

needed from the only source that can be authoritative.



                             A

    In cases challenging the sufficiency of the evidence

supporting a state-court criminal conviction, we are not

concerned with the state court’s application of state law

defining the offense, but with the state court’s application

of federal law, and, in this context, the sufficiency
standard set forth by the Supreme Court in Jackson v.

Virginia, 443 U.S. 307 (1979).    See Epps, 687 F.3d at 50.

Even on direct review, the relevant question under Jackson

is whether, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.”   Jackson, 443 U.S. at 319.   When a case

is presented to a federal court in the context of habeas

review, and the state court has already passed on the

constitutional question, our review is doubly deferential,

see Cavazos v. Smith, 132 S. Ct. 2, 6 (2011); Garbutt, 668

F.3d at 81, permitting intervention only where the

conviction “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law,” 28 U.S.C. § 2254(d)(1).

    As the panel opinion observes, no state appellate court

passed on the merits of Gutierrez’s sufficiency challenge.

Maj. Op. at 13.   But the appellate division did hold that

the depraved indifference conviction was not against the

weight of the evidence, see People v. Gutierrez, 790

N.Y.S.2d 493, 494 (2d Dep’t 2005), which is a more exacting

standard of review, see Parker, 666 F.3d at 833; People v.


                              2
Bleakley, 69 N.Y.2d 490, 495 (1987).    “Therefore, to the

extent the Appellate Division decided that [the] conviction

was not against the weight of the evidence, it necessarily

decided that there was sufficient evidence to support the

verdict.”   Parker, 666 F.3d at 833.   It should follow that

the appellate division found that the conviction was not

against the weight of the evidence.    But that conclusion

arguably depends on the state of the law concerning depraved

indifference murder, and exactly how the appellate division

undertakes weight-of-the-evidence review.1

    A person is guilty of depraved indifference murder

when, “[u]nder circumstances evincing a depraved

indifference to human life, he recklessly engaged in conduct

which creates a grave risk of death to another person, and

thereby causes the death of another person.”    N.Y. Penal Law

§ 125.25(2).   Given the record here--witness recollections


    1
      There is some authority in New York for the
proposition that weight-of-the-evidence review is measured
against only the jury charge given without defendant’s
objection. See People v. Danielson, 832 N.Y.S.2d 546, 550
(1st Dep’t 2007). However, in Parker, a panel found that
this type of review was sufficient to require deference to
the appellate division’s conclusion as if it had reviewed
the jury’s verdict for sufficiency of the evidence. See
Parker, 666 F.3d at 833. Gutierrez has also taken the
position that New York law requires Payne be applied to the
appellate division’s weight-of-the-evidence review.
                              3
that were inconsistent and blurred by time and intoxication,

and no direct testimony at all about either stabbing (even

from the surviving victim)--a considerable range of

inference was available to the jury.     One such available

inference would be depraved indifference murder--unless New

York law (then prevailing, or properly made retroactive) is

that a one-on-one, face-to-face fatal assault is

intentional, categorically.

    In the middle of a brawl outside of Rick’s, Gutierrez

produced his knife and threatened a group of men.     In his

written confession, Gutierrez described how he “accidentally

stabbed someone” who ran onto his knife (assumably Narcisso

Villaplana).   From this evidence, a jury could conclude that

Gutierrez was wielding his knife with a random menace that

demonstrated deliberate indifference to human life.

    After stabbing Narcisso, Gutierrez and three others

pursued or dragged John Villaplana away from the fracas

toward a driveway down the road.     There is a gap in the

evidence until Randall Villaplana’s testimony that he drove

up to John, who had already been mortally wounded, but was

still on his feet, staggering.     The medical examiner

testified that John could have remained conscious for


                              4
several minutes after the stabbing, and ran or moved around

during that time period.   No one saw Gutierrez stab John.

    John suffered a single stab wound to his chest, with

two wound tracks.   The medical examiner testified at trial

that the two wound tracks were consistent either with the

knife being partially withdrawn and reinserted or with “the

victim moving back, and then the victim for some reason

going forward again”; he could not opine which was more

likely.   So the proper inference to be drawn on our review

is that John was the one that moved during the stabbing, or

that both John and Gutierrez were changing positions during

the stabbing.   Hearing this evidence, a jury could doubt

that John’s stabbing was intentional, and believe instead

that it occurred during a struggle.

    In sum, how, where, and why Gutierrez stabbed John

remains open to different, reasonable interpretations.

Depending on the (unsettled) state of New York law, one

interpretation could have been that Gutierrez was acting

with deliberate indifference to human life throughout the

brawl at Rick’s and the subsequent stabbing of John.




                              5
                               B

       The panel opinion recounts in detail a view as to how

New York’s depraved indifference law had changed as of the

decision in People v. Payne, 3 N.Y.3d 266 (2004).     But it

relies on that decision’s dicta, not on its facts or holding

(or those of People v. Hafeez, 100 N.Y.2d 253 (2003) and

People v. Gonzalez, 1 N.Y.3d 464 (2004)).    No prolonged

discourse is needed, however, because the New York Court of

Appeals best knows what it said, did, and held.

       The three depraved indifference cases decided before

Gutierrez’s conviction became final (Hafeez, Gonzalez, and

Payne) do not compel the conclusion that a one-on-one

stabbing or shooting is reliably intentional.     True, they

involved one-on-one killings; at the same time, however,

those killings were unquestionably intentional.     In Hafeez,

the defendant had plotted the victim’s murder and laid in

wait for him, before leaping out, throwing him against a

wall, and stabbing him once in the chest.    100 N.Y.2d at

257.    “[T]here exist[ed] no valid line of reasoning that

could support a jury’s conclusion that [the] defendant

possessed the mental culpability required for depraved

indifference murder,” which was at the time recklessness.


                               6
Id. at 259.   In Gonzalez, the defendant had walked into a

barbershop and shot the victim in the chest and head, and

after the victim fell to the ground the defendant shot him

eight more times in the back and head.    1 N.Y.3d at 465-66.

In Payne, the defendant marched over to his neighbor’s

house, with whom he was angry, carrying a 12-gauge shotgun,

and shot him just below the chest.    3 N.Y.3d at 269.   He

admitted to shooting his neighbor at trial, but argued that

he acted in self-defense.   Id.    After rejecting the

justification defense, the jury had no choice but to

conclude that the killing was intentional.    Each of those

opinions also preserved People v. Sanchez, 98 N.Y.2d 373

(2002), and did not overrule it.     See Payne, 3 N.Y.3d at

272; Gonzalez, 1 N.Y.3d at 469; Hafeez, 100 N.Y.2d at 258-

59.

      Taken together, Hafeez, Gonzalez, and Payne establish

that an intentional murder could not have been done

recklessly, the standard articulated in People v. Register,

60 N.Y.2d 270 (1983), and Sanchez.     And they reflect the New

York Court of Appeals’ willingness to identify certain

factual scenarios that would support a jury’s finding of

reckless conduct.   However, none of the three cases gave the



                              7
Court of Appeals an occasion to consider facts like those

now before us.   Here, although the fatal stabbing was one-

on-one and face-to-face, there is sufficient evidence for a

jury to find that the defendant did not act with an intent

to kill, and that his conduct put others at risk.

    Two of our recent cases involving defendants whose

convictions became final after Payne upheld depraved

indifference convictions in circumstances similar to those

of Gutierrez’s crime.      In Garbutt v. Conway, 668 F.3d 79 (2d

Cir. 2012), the defendant had set out to confront his ex-

girlfriend.   Id. at 80.     After intercepting her and her

daughter at a bus stop, he stabbed his ex-girlfriend in the

arm and chest, and cut the daughter’s jacket.      Id.    Although

the defendant had procedurally defaulted and the panel was

concerned with whether failure to consider the unreserved

claim would result in a fundamental miscarriage of justice,

the panel nonetheless concluded that a rational jury “could

have found Garbutt guilty of recklessness manifesting

depraved indifference to human life.”      Id. at 82.    It

considered that the jury could have “inferred from the fact

that Garbutt ran away before verifying that [the victim] had

died that he had not intended to kill her.”      Id.


                                 8
      Parker v. Ercole, 666 F.3d 830 (2d Cir. 2012), employs

a similar analysis.   The defendant and his friend Sanchez,

after a night of drinking, had stolen the car of the victim

(Johnson).   Id. at 832.    Like this case, what happened next

was never entirely clear:

      When Johnson and his friend confronted them, a fight
      broke out and Johnson punched Sanchez in the face,
      knocking him to the ground. At this point, a witness
      heard Parker announce “I got something for that nigga”
      and then heard a “pop” as a single rifle shot was fired
      from inside the front hallway of a residence across the
      street from where Johnson was pacing back and forth
      amidst several other people. Johnson, who was struck
      by the bullet, ran away and collapsed between a car and
      a snowbank. His body was not found for several hours
      and none of Johnson’s friends believed he had been
      killed in the interim. However, Parker was heard
      bragging in the meantime that he had shot Johnson.
      Parker testified on his own behalf and maintained that
      he was not the shooter.

Id.   The panel in Parker concluded that “there was

sufficient evidence for a rational trier of fact to find

that Parker acted recklessly and with depraved indifference

when he shot Johnson, and not with the intent to kill.”      Id.

at 835.

      Depending on the state of New York law, a jury weighing

the facts set forth in Part A of this opinion, might

reasonably conclude that Gutierrez did not act

intentionally.   Gutierrez, who had been drinking, wielded



                                9
his knife during a brawl outside a bar, during which he

unintentionally stabbed Narcisso.     He then dragged John away

from Rick’s, or chased him down the road, where he stabbed

John, perhaps during a struggle.    When Randall arrived on

the scene, he found two men standing next to John “waiting

to see how John was gonna react.”     The jury could find that

Gutierrez’s conduct was inconsistent with an intent to kill.

Gutierrez left the scene while John was still standing, when

an intentional killer might have finished him off.

Gutierrez did not know whether John was living or dead when

Gutierrez was later questioned by the police.     When asked

why he stabbed John, Gutierrez told a detective that he

“didn’t know why” he stabbed him.     After the stabbing,

Gutierrez bragged to a van full of strangers that he was

“happy that he had used his knife.”     The jury was free to

conclude from this evidence that Gutierrez’s conduct was not

intentional, but was reckless and took place in

circumstances evidencing a depraved indifference to human

life--unless New York law precluded such a finding.     That is

why this certification is important.




                             10
                              C

    With regard to the question of retroactive application,

I would take at face value the court’s decision in People v.

Jean-Baptiste, 11 N.Y.3d 539 (2008): New York’s evolving

standard for depraved indifference murder only “appl[ies] to

cases brought on direct appeal in which the defendant has

adequately challenged the sufficiency of the proof as to his

depraved indifference murder conviction.”   Id. at 542

(emphasis added).   I think that New York’s procedural

default rule is thus built into the rule of retroactivity,

so that Payne, People v. Suarez, 6 N.Y.3d 202, 211 (2005),

and People v. Feingold, 7 N.Y. 3d 288 (2006), are not

retroactively applicable to cases on direct appeal unless

the defendant had objected on the grounds of insufficiency.

    There is good reason for such a rule in these depraved

indifference murder cases: when a conviction is inadequately

supported by the evidence, the appellate divisions of New

York’s supreme courts possess the authority to reduce it to

a lesser included charge that finds adequate support.

See N.Y. Crim. Proc. Law § 470.15(2)(a); People v. Jean-

Baptiste, 844 N.Y.S.2d at 72, 73 (2d Dep’t 2007).   If

Gutierrez was not in fact guilty of depraved indifference

                              11
murder--and the error had been brought to the attention of

that court--the appellate division could have properly

reduced his conviction to the lesser included charge of

second degree manslaughter.

    The rationale advanced by the New York Court of Appeals

for the change completed by Feingold is consistent with a

rule limiting retroactive application to cases in which a

proper objection was made at trial.        In Policano v. Herbert,

7 N.Y.3d 588 (2006), the New York Court of Appeals recounted

three considerations to be weighed when deciding whether to

apply a new principle retroactively: “the purpose to be

served by the new standard; the extent of the reliance by

law enforcement authorities on the old standard; and the

effect on the administration of justice of a retroactive

application of the new standard.”        Id. at 603.

    The “purpose to be served by the new standard” is the

most important consideration.        In the present context, that

purpose “is to dispel the confusion between intentional and

depraved indifference murder” and to “make future homicide

prosecutions more sustainable, increasing the likelihood

that defendants who are proven beyond a reasonable doubt to

have committed intentional murder will be properly held to


                                12
account for that crime.”   Id. at 603-04 (internal quotation

marks omitted, emphasis added).    Retroactive application to

a defendant who did not make a proper insufficiency

challenge runs counter to that objective.     Applying the

principles of Hafeez, Gonzalez, and Payne to Gutierrez’s

trial, which took place in 2001, would do less than nothing

to make “future homicide prosecutions more sustainable.”

Such application would severely undermine prosecutors’

reliance on the standard (established in Register), which

had been consistently applied for 20 years.     Id. at 604

(“For two decades prosecutors relied on Register’s

objectively determined degree-of-risk formulation when

making their charging decisions.”)

    Retroactive application here would also frustrate the

efficient “administration of justice,” by opening an avenue

for habeas relief when the defendant failed to raise an

objection in courts that could have obviated the problem.

Moreover, as the New York Court of Appeals has drily

observed, “[d]efendants who committed vicious crimes but who

may have been charged and convicted under the wrong section

of the statute are not attractive candidates for collateral

relief after their convictions have become final.”     Suarez,

6 N.Y.3d at 217-18.


                              13
    But, all this said, we cannot be certain that the Court

of Appeals sees its law that way.     Hence, my concurrence in

this certification.


                              * * *

    The panel poses two important questions to the New York

Court of Appeals.     I suggest that those questions be

supplemented as follows:

    1.   For the circumstances of a crime to evince depraved

    indifference--as of September 12, 2005, when the

    defendant’s conviction became final--must the threat

    and danger to others inhere in the very gesture that

    inserts the knife or fires the gun point-blank, or is

    it enough that defendant endangered a group with his

    weapon, but then singled out for attack, at random, one

    victim from the threatened group of persons?



    2.   Does the evolving standard of depraved indifference

    law, as it existed on the day defendant’s conviction

    became final, apply retroactively to a defendant who

    did not preserve an objection to the sufficiency of his

    depraved indifference murder conviction; or, consistent

    with People v. Jean-Baptiste, 11 N.Y.3d, 539 (2008), is

    the retroactive application limited to “cases brought

                                14
on direct appeal in which the defendant has adequately

challenged the sufficiency of the proof as to his

depraved indifference murder conviction,” id. at 542.




                        15
