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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 135
The People &c.,
            Respondent,
        v.
Jose Maldonado,
            Appellant.




          Joshua M. Levine, for appellant.
          Diane R. Eisner, for respondent.




RIVERA, J.:


          In this appeal, we conclude that the evidence was
legally insufficient to support defendant's conviction for

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depraved indifference murder because the circumstances of this
high-speed vehicular police chase do not fit within the narrow
category of cases wherein the facts evince a defendant's utter
disregard for human life.   Accordingly, we modify the Appellate
Division's order by reducing defendant's conviction to
manslaughter in the second degree.


                                I.
          Police pursued defendant Jose Maldonado through the
streets of Greenpoint, Brooklyn, a mixed commercial-residential
neighborhood, soon after he stole a minivan from outside its
owner's residence.   This five-minute, midday chase led to
defendant's fatal collision with a pedestrian and his prosecution
and conviction for depraved indifference murder.   Defendant
concedes that the evidence established his reckless driving but
argues that it only supports a conviction for manslaughter in the
second degree.   Thus, in this appeal, we are only concerned with
whether the proof at trial evinced the statutorily required
mental state to sustain his conviction for depraved indifference
murder.
          It is undisputed that defendant consistently drove well
above the 30 miles per hour speed limit and violated numerous
traffic rules as he attempted to evade capture by the police.
The chase began when defendant ran a red light, accelerated
through intersections, and went the wrong way down two one-way


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streets.   The police followed with lights and sirens activated as
defendant drove towards Manhattan Avenue, a major thoroughfare
and commercial hub.    Defendant turned onto the avenue where,
according to witnesses, there was heavy vehicular and pedestrian
traffic.   As he drove north, defendant swerved into the
southbound lane to pass slower vehicles and avoid congestion, and
then shifted back into the northbound lane.     Witnesses estimated
that he was driving 40 to 50 miles per hour.
             A few blocks up Manhattan Avenue, defendant ran a
second red light and narrowly avoided hitting a pedestrian in a
crosswalk.    According to witnesses, defendant did not brake or
slow down.    Instead, he accelerated north and again swerved
across the double-yellow lines into the southbound lane to avoid
slower moving vehicles.    A driver going south testified that
defendant did not slow down when he entered the opposing lane of
traffic.   As a consequence, the driver had to swerve to the side
of the road to avoid a collision.    Once clear of congestion,
defendant swerved back into the northbound lane.
             A block later, defendant ran a third red light and
struck a woman in a crosswalk.    The victim hit the passenger side
of the minivan's windshield with such force that her body landed
more than 100 feet down the avenue.      She died at the scene.   At
that point, the police stopped following defendant to render aid
to the victim.
             Defendant continued accelerating north on Manhattan


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Avenue, again swerving into the southbound lane.    A driver headed
south testified that defendant sped towards him at a rate of
about 50 to 70 miles per hour.    As a result, he had to swerve
into the northbound lane to avoid a head-on collision with
defendant.    After the driver swerved, defendant's escape routes
were apparently blocked by cars in both the north and southbound
lanes.
             The chase ended a few blocks from where defendant
struck the pedestrian, when defendant crashed the minivan into a
parked car to avoid hitting other vehicles.    The impact pushed
the parked car over the cars parked behind it.    Defendant, still
trying to escape capture, ran out of the minivan and down a
nearby street, followed by the driver who had just swerved to
avoid a collision with defendant and a group of pedestrians who
witnessed the crash.    The group caught up with defendant and
tackled and held him until the police arrived and put him under
arrest.
             At the precinct, defendant admitted that he stole the
minivan, exceeded the speed limit, and swerved into oncoming
traffic as he fled the police.    In explaining his driving,
defendant said he tried to avoid hitting cars and pedestrians,
and that he did not know the neighborhood well and drove down the
one-way streets by mistake.    Defendant said he was lost when he
ended up on Manhattan Avenue, and that he was avoiding cars as he
evaded the police.    According to defendant, he was going against


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traffic and looking in his rearview mirror for the police
immediately before he struck the victim.   When he looked forward
again, defendant said he saw the victim and that he thought he
"hit the girl in the hand or something."   When he saw more people
and traffic two blocks later, defendant decided to crash into the
parked car to avoid hurting anyone else.   He also expressed
remorse for his actions.
          Defendant was charged with numerous crimes arising from
the theft of the minivan and the death of the pedestrian,
including murder in the second degree (depraved indifference
murder) (Penal Law § 125.25 [2]), manslaughter in the second
degree (Penal Law § 125.15 [1]), criminally negligent homicide
(Penal Law § 125.10), unlawful fleeing of a police officer in a
motor vehicle in the third degree (Penal Law § 270.25), unlawful
fleeing of a police officer in a motor vehicle in the first
degree (Penal Law § 270.35), grand larceny in the fourth degree
(Penal Law §155.30 [8]), and criminal possession of stolen
property in the fourth degree (Penal Law § 165.45 [5]).   At
trial, defendant moved at the close of the People's case and
again after defense rested, for dismissal of the depraved
indifference murder charge on the ground that the People failed
to establish the requisite mental state.   In support of the
motions, he argued that the evidence showed he repeatedly swerved
to avoid hitting pedestrians and cars, indicating that his
driving was merely reckless.   Supreme Court denied the first


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motion, reserved judgment on the second and submitted, over
defendant's objection, a charge of depraved indifference murder
to the jury along with other relevant charges.
          The jury found defendant guilty of depraved
indifference murder, unlawful fleeing of a police officer in a
motor vehicle in the first degree, and grand larceny in the
fourth degree.   After the verdict, defendant renewed his motion
for a trial order of dismissal for depraved indifference murder.
Supreme Court denied the motion, finding the evidence in this
case comparable to that in People v Gomez (65 NY2d 9 [1985]), and
similarly sufficient to support a conviction of depraved
indifference murder.   Supreme Court sentenced defendant to an
aggregate prison term of 20 years to life.
          Defendant appealed, asserting legal sufficiency and
weight of the evidence challenges to his depraved indifference
murder conviction.   The Appellate Division affirmed (see People v
Maldonado, 100 AD3d 657 [2d Dept 2012]).     A Judge of this Court
granted defendant leave to appeal (21 NY3d 1044 [2013]).


                                II.
                                A.
          A person is guilty of depraved indifference murder
when, "[u]nder circumstances evincing a depraved indifference to
human life [such person] recklessly engages in conduct which
creates a grave risk of death to another person, and thereby


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causes the death of another person" (Penal Law § 125.25 [2]).
Depraved indifference is a culpable mental state which "is best
understood as an utter disregard for the value of human life"
(People v Feingold, 7 NY3d 288, 296 [2006] [internal quotation
marks and citation omitted]).    Thus, "a depraved and utterly
indifferent actor is someone who does not care if another is
injured or killed" (id. [internal quotation marks and citation
omitted]).    Due to the wanton nature of this mens rea, "depraved
indifference murder properly applies only to a small, and finite,
category of cases where the conduct is at least as morally
reprehensible as intentional murder" (People v Suarez, 6 NY3d
202, 207 [2005]).
             A defendant who knowingly pursues risky behavior that
endangers others does not necessarily evince depraved
indifference by engaging in that conduct.    As we have explained,
"[a] person who is depravedly indifferent is not just willing to
take a grossly unreasonable risk to human life -- that person
does not care how the risk turns out" (People v Lewie, 17 NY3d
348, 359 [2011]).    "The element of depraved indifference to human
life comprises both depravity and indifference, and has meaning
independent of recklessness and the gravity of the risk created"
(People v McMillon, 31 AD3d 136, 139 [2d Dept 2006], lv denied 7
NY3d 815 [2006]).    In short, the mens rea of depraved
indifference will rarely be established by risky behavior alone.




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                               - 8 -                         No. 135

                                B.
          Defendant concedes that his conduct was reckless, but
contends that the evidence failed to establish the depravedly
indifferent mental state required by the statute.   We agree that
under the circumstances of this case, there was insufficient
evidence to support defendant's conviction for depraved
indifference murder.
          A conviction is legally insufficient where, viewing the
record in the light most favorable to the prosecution, there is
no "valid line of reasoning and permissible inferences from which
a rational jury could have found the elements of the crime proved
beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349
[2007]; see People v Williams, 84 NY2d 925, 926 [1994]; People v
Contes, 60 NY2d 620, 621 [1983]).    Where the People fail to offer
evidence evincing a defendant's utter disregard for human life
there can be no basis for a jury's finding of guilt on a depraved
indifference murder charge.   Without such evidence, a jury cannot
reasonably conclude that the defendant did not care whether
someone lived or died and as a consequence was depravedly
indifferent.
          Here, defendant sought to mitigate the consequences of
his reckless driving because he "actively attempt[ed] to avoid
hitting other vehicles" by swerving, conduct which establishes a
lack of depraved indifference (People v Heidgen, 22 NY3d 259, 276
[2013]; see People v Prindle, 16 NY3d 768, 771 [2011]).     Although


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defendant drove on the wrong side of the road, this conduct was
episodic and part of his effort to avoid other vehicles while
evading the police.    This conscious avoidance of risk is the
antithesis of a complete disregard for the safety of others.
Defendant was unquestionably reckless, but he was not depravedly
indifferent as we have defined and interpreted that state of
mind.   Unlike our dissenting colleagues, we conclude that, given
this evidence, a rational jury could not have reasonably found
depraved indifference beyond a reasonable doubt.
             Our analysis in Heidgen illustrates why the facts of
defendant's case are insufficient to support a different
conclusion.    In Heidgen, we upheld three depraved indifference
murder convictions involving intoxicated drivers.    We concluded
the evidence sufficiently established the respective defendants'
complete disregard for the risk created by their reckless driving
and their total lack of concern for the life and welfare of
others (see Heidgen, 22 NY3d at 267).    Two of the defendants in
Heidgen drove after midnight, in the early morning hours, at
excessive speeds on a parkway or major thoroughfare (see id. at
268, 273).    The third defendant sped on a local road late at
night (see id. at 271-272).    Each of the defendants drove a
significant distance in the wrong direction, directly towards
oncoming traffic, and did not swerve to avoid collisions with
other vehicles.
             In People v Heidgen, the defendant "drove the wrong way


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on the highway for over two miles without reacting to other
drivers coming at him," and "appeared to follow, or track, the
headlights of oncoming vehicles" (22 NY3d at 277).    The evidence
showed that the defendant not only failed to move out of the way,
but actually followed the other drivers' movements as they sought
to avoid colliding with him, in what we characterized as "a high
speed game of chicken" (id.).     The defendant in People v Taylor,
sped "without headlights, on the wrong side of the road, . . .
[and] did not . . . make any attempt to swerve" (id. at 271-272).
In People v McPherson, the defendant "traveled about five miles
in the wrong direction . . . [and] made no attempt to brake or to
avoid other vehicles" (id. at 273).
             Unlike the defendants in Heidgen, defendant never
tracked or followed the movements of any driver, nor did he
purposefully impede another driver's efforts to avoid a
collision.    Defendant drove in the wrong lane for brief periods
of time in order to pass other cars, not as part of a deadly
game.   He immediately returned to the proper lane once clear of
congestion in order to avoid hitting other vehicles.    Eyewitness
testimony established that he repeatedly tried to avoid
collisions while evading capture by the police.    Although
defendant swerved around cars and across lanes of traffic, he did
so both to speed his flight and to avoid crashing into other
vehicles or pedestrians.
             Defendant's reckless driving does not, on its own,


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establish the requisite mens rea of depraved indifference.    If
careless and unsafe driving were enough to meet this requirement,
then we would have affirmed the defendant's conviction of
depraved indifference murder in People v Prindle (16 NY3d 768
[2011]), a case involving facts almost identical to those at
issue before us in this appeal.   Instead, in Prindle, we reduced
the defendant's conviction to manslaughter in the second degree.
            In that case, the defendant led the police on a high-
speed chase along highways and residential streets in Rochester
(see id. at 771 [Pigott, J., dissenting]).   The defendant sped,
drove erratically, crossed double-yellow lines into oncoming
traffic, and wove into the passing lane (id. at 772).    He also
barreled through several red lights and caused the drivers of
other cars to swerve or stop to avoid a collision.   After the
police deactivated their lights and siren, the defendant
continued to speed, swerved into oncoming traffic, turned onto
local streets, ran a red light, and struck a truck (see id. at
772-773).   Thereafter, although he had room "to navigate around
[it]," the defendant hit another car and killed one of its
occupants (id. at 773).    Nevertheless, we concluded that the
evidence failed to "evince[] a depraved indifference to human
life" (id. at 770-771).1


     1
        In Prindle, we applied the trial court's depraved
indifference murder charge as given without exception, which was
based on the objective-circumstances standard articulated in
People v Register (60 NY2d 270 [1983]). Nevertheless, Prindle

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          Like the defendant in Prindle, defendant here drove
through a populated area, exceeded the speed limit, ran red
lights, swerved across double-yellow lines into oncoming traffic,
and drove the wrong way on one-way streets.   Several witnesses
testified that defendant swerved to avoid hitting other cars or
pedestrians.   Thus, as in Prindle where the defendant was
"actively attempting to avoid hitting other vehicles,"
defendant's conduct here did not evince an utter disregard for
human life (Heidgen, 22 NY3d at 276).
          According to the People, defendant's conduct was more
egregious than that found in Prindle and constitutes legally
sufficient evidence of his depraved indifference.   In particular,
the People claim that defendant showed an utter lack of concern
for human life because he failed to modify his driving after
narrowly missing a pedestrian.2   The People contend that
defendant's near-miss of a pedestrian was measurably worse than
the Prindle defendant's actual collision with a truck, because
pedestrians are more vulnerable to injury than are the occupants
of vehicles.   The People's creative attempt to distinguish a


continues to provide important guidance because where, as in that
case, the evidence is insufficient to establish depraved
indifference under Register, it will most assuredly fail to meet
the Feingold culpable-mental state requirement.
     2
       The dissent agrees. However, as Prindle makes clear,
attempting to avoid a collision with others, even if done in a
reckless manner, is insufficient proof of depraved indifference
(see Prindle, 16 NY3d at 770-771). Rather, it suggests the
opposite (see Heidgen, 22 NY3d at 276).

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near-miss from an actual collision is not persuasive because,
although there is a grave risk of injury in either case, gravity
of risk alone is not determinative of the requisite mental state.
          What matters in a depraved indifference analysis is
that a defendant -- even one "willing to take a grossly
unreasonable risk to human life" -- "does not care how the risk
turns out" (Lewie, 17 NY3d at 359).    Certainly, the defendant in
Prindle was aware of the risk posed by his continued reckless
driving after running a red light and striking a truck in an
intersection.   Nevertheless, the defendant went through two more
red lights before the final collision that resulted in the
victim's death.   On those facts, we found the evidence legally
insufficient to support a depraved indifference conviction.
Here, defendant missed a pedestrian, and his driving afterwards -
- characterized by his efforts to swerve away from traffic and
avoid collisions -- does not evince a depravedly indifferent
mental state.
          The People also contend that, because he took his eyes
off the road to check for police in the rearview mirror
immediately before his collision with the victim, defendant's
conduct was more reprehensible than that of the defendant in
Prindle and shows he was depravedly indifferent.    We find this
momentary action insufficient to transform defendant's intent to
the type of depravity required under the statute.   Looking in the
rearview mirror was a manifestation of defendant's continued


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desire to evade the police, not his total disregard for whether
his reckless driving killed someone.     A defendant may
simultaneously intend to flee police and avoid striking other
cars or pedestrians.    These intents are not mutually exclusive
even if, as is the case here, the attempted escape is carried out
in a reckless manner.   While defendant swerved into opposing
lanes of traffic and exceeded the speed limit, he also "actively
attempt[ed] to avoid hitting other vehicles" (Heidgen, 22 NY3d at
276).    There is no indication that his conduct in doing so was
motivated solely by his intent to evade capture, regardless of
the risk to human life.   The fact that defendant intended to
avoid capture, as well as accidents, does not elevate the case to
depraved indifference murder.
            The People further speculate that defendant ended the
chase by crashing the minivan into a parked car, not out of
concern for the welfare of others, but because other cars were
blocking his escape.    Again, without direct evidence of
defendant's intent, the People essentially rely on evidence of
defendant's reckless driving to establish the culpable mental
state.   However, recklessness and depraved indifference are
separate mens rea.   Here, assuming the People proffered evidence
indicating that defendant was aware of and disregarded the
substantial risk of injury or death caused by his driving, they
failed to submit evidence establishing that defendant did not
care whether grievous harm resulted (see Feingold, 7 NY3d at


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296).   Thus, no reasonable jury could conclude that defendant was
depravedly indifferent.
           Nevertheless, relying on the decision of the trial
court, the People contend that the facts here most closely mirror
those in People v Gomez (65 NY2d at 9) and we should apply a
similar analysis to uphold defendant's depraved indifference
conviction.   Our analysis in Gomez, which applied the overruled
Register standard, does not bind us here.    Rather, our decision
in Heidgen provides the appropriate basis to analyze defendant's
driving and whether there was sufficient evidence to find the
requisite culpable mental state.    As our discussion of Heidgen
makes clear, this case is not one of the very few wherein a
defendant's "culpability is the equivalent of an intentional
murderer" (Heidgen, 22 NY3d at 277).
           If we accepted the People's argument, depraved
indifference murder could arguably be charged in every case where
a defendant killed someone during a high-speed police chase.     By
its nature, a high-speed chase endangers pedestrians and other
drivers and carries the potential for grave injuries and
fatalities.   Defendants who take part in high-speed chases
violate accepted rules of the road and drive in what is generally
considered a reckless manner.    Yet, not every vehicular police
chase resulting in death will take place under circumstances
evincing the defendant's depraved indifference.   Cases of
depraved indifference murder "are highly fact-specific and


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dependent upon the individual defendant's particular mental state
-- a factor that may be extremely difficult to establish"
(Heidgen, 22 NY3d at 276).   Where, as here, there is no
additional evidence evincing a fleeing defendant's wanton
disregard for the risk that the defendant's reckless flight from
police poses to others, a charge for depraved indifference murder
should not be submitted to the jury.
          Accordingly, the Appellate Division order should be
modified by reducing defendant's conviction of murder in the
second degree to manslaughter in the second degree and remitting
to Supreme Court for resentencing and, as so modified, affirmed.




                              - 16 -
People v Jose Maldonado
No. 135




PIGOTT, J. (dissenting):
           Once again, a person is dead because a defendant,
concerned about being arrested for theft, led police on a high-
speed chase through residential neighborhoods (compare People v
Prindle, 16 NY3d 768, 771-775 [2011] [Pigott, J., dissenting]).
And, once again, the majority treats this crime with unfathomable
and unjustified leniency (compare Prindle, 16 NY3d at 769-771).
           After he hot-wired and stole a minivan in a residential
neighborhood in Brooklyn, defendant Jose Maldonado abruptly
overtook an unmarked police vehicle near the intersection of
Graham Avenue and Jackson Street.   Police Officer Steven Truglio
signaled for defendant to stop; as the officer approached on
foot, defendant put the minivan into gear and sped off up Graham
Avenue.   Pursued by the police vehicle, defendant quickly
exceeded the local speed limit of 30 m.p.h. and drove through a
red light at Meeker Avenue.   He then turned right on Driggs
Avenue, driving the wrong way on this one-way street, before
turning onto McGuiness Boulevard.   Defendant then proceeded the
wrong way on another one-way street, Engert Avenue, for three
blocks, before turning onto Manhattan Avenue.
           Speeding north along the avenue, and accelerating,


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                               - 2 -                          No. 135

defendant encountered extremely heavy traffic, on this weekday
afternoon in spring.   Officer Truglio observed defendant darting
from his northbound lane into the southbound lane, and swerving
in and out of the oncoming traffic in his effort to escape.     A
bystander estimated that defendant was exceeding the speed limit
by 10 or 20 m.p.h., while driving north in the southbound lane.
           At the intersection of Manhattan Avenue and Milton
Street, about half a mile to the north, defendant went through
another red light, nearly striking a pedestrian – a woman who was
in the process of crossing the avenue.   She was able to dive out
of the way of the oncoming minivan.    Defendant did not even apply
his brakes.1   In fact, he continued to accelerate, and approached
the intersection of Manhattan Avenue and Kent Street at about 60
m.p.h.   He swerved around a driver in the northbound lane,
entered the southbound lane, and barrelled head-on toward a
vehicle driven by a motorist who had to wrench his car to one
side to avoid a collision.   That driver, stopping to recover
himself, watched in his side-view mirror as defendant continued
in the wrong lane and ran another red light at the India Street
intersection, swerving between stopped cars waiting for the
light.


     1
       Although Officer Truglio testified that defendant swerved
away from this pedestrian at the same time as she took evasive
measures, Lieutenant Roy, sitting in the front passenger seat,
did not see defendant swerve, and it appears that the woman
escaped because of her athletic evasive action. In any case,
defendant did not do what a person displaying the most minimal
degree of care would have done, that is brake.

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                                 - 3 -                      No. 135

          It was at this intersection, Manhattan Avenue and India
Street, that defendant struck a pedestrian, Violet Kryzak, 37,
killing her.   Kryzak was crossing Manhattan Avenue, with the
pedestrian light in her favor.    Her body flew into the air upon
impact and landed over 165 feet, or almost one block, away from
the point of collision.   A witness who saw the moment of impact
estimated that defendant was driving at 70 m.p.h., while another
bystander thought his speed was closer to 80 m.p.h.   It is clear
from the testimony that defendant first swerved from the
northbound to the southbound lane, to get around northbound
vehicles stopped for the traffic light, and then immediately
swerved back into the northbound lane, so as not to collide with
stopped traffic straight ahead in the southbound lane.    At this
point, he slammed into Mrs. Kryzak.2
          Officer Truglio and his colleagues immediately stopped
in order to attend to Kryzak.    Defendant, however, did not brake,
instead speeding away at what another bystander described as
highway-type speed, still speeding north in the southbound lane.
At the Dupont Street intersection, five blocks to the north, the
driver of a pickup truck saw defendant heading towards him at
what he estimated to be as much as 70 m.p.h.   The windshield of
defendant's vehicle was caved in on the passenger side.    The
truck driver swerved, towards other oncoming traffic, to avoid a



     2
       Defendant told the police he "tried to swerve" when he saw
Kryzak, but no witness observed any evasive measure.

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                                - 4 -                          No. 135

collision with the minivan, which finally crashed into parked
vehicles.
            Defendant jumped out and started running along Dupont
Street, pursued by civilians.   Eventually a police officer took
him into custody.   Defendant waived his Miranda rights and made
statements to the police.
            There is no dispute as to the standard in this post-
Feingold case.    "[T]he decisive question is whether defendant
acted with the state of mind required by the depraved
indifference murder statute – an utter disregard for the value of
human life" (People v Taylor, 15 NY3d 518, 523 [2010] [citation
and internal quotation marks omitted]).   To be guilty of depraved
indifference, a defendant must have a mens rea that is more than
simply a willingness to take the risk that a person will die as a
result of his actions (see People v Lewie, 17 NY3d 348, 359
[2011]).    A defendant who is willing to take the risk that
someone will die but remains fearful of that possible result is
not guilty of depraved indifference murder (see id.).    On the
other hand, someone whose state of mind is entirely indifferent
and uncaring – a defendant who does not care whether another
person is killed or grievously injured as a result of his actions
(see People v Barboni, 21 NY3d 393, 400 [2013]; People v
Feingold, 7 NY3d 288, 296 [2006]) – has the requisite mens rea.
            Consequently, the question here is whether the People
proved that defendant Maldonado had such a state of mind – of not


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                              - 5 -                          No. 135

caring whether a pedestrian died or was grievously injured as a
result of his reckless driving.    In my view, it is clear that the
proof of depraved indifference was sufficient.   Notably, there
was no evidence that defendant slowed down at intersections; and,
most notably, defendant did not stop driving through red lights
or against the flow of traffic, or otherwise adjust his reckless
driving behavior, after almost hitting the first pedestrian.    In
other words, there is no indication that defendant, though
reckless, remained to some extent fearful for others' safety
(contra Lewie, 17 NY3d at 359).
          Defendant contends that his actions of swerving in and
out of traffic, including swerving to avoid an oncoming car just
before he fatally struck Kryzak, demonstrate that he took some
care to avoid a fatal collision.   I strongly disagree.   Swerving
in and out of traffic, including the maneuvers preceding the
fatal impact, merely demonstrates defendant's desire to avoid
apprehension, not to avoid pedestrians.   To the extent it
indicates avoidance of other vehicles, it simply shows that he
was not suicidal.
          During the high-speed car chase, defendant drove at
speeds greatly exceeding the speed limit, through red lights and
in the path of oncoming traffic, to avoid police pursuit; he
narrowly missed one pedestrian before striking and killing
another; and he refused to change his driving behavior in the
face of this encounter, when he had the opportunity to display


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                                 - 6 -                           No. 135

that he cared whether or not he might strike a pedestrian.
Viewing the evidence in the light most favorable to the
prosecution, as we must, there is a valid line of reasoning and
permissible inferences from which a rational jury – the jury in
this trial – could have found that defendant's state of mind was
not extreme recklessness alone, but also utter indifference to
the value of human life – that he simply did not care whether or
not a pedestrian died.
            Therefore, I would affirm the unanimous order of the
Appellate Division, holding that the evidence of defendant's
guilt of murder in the second degree was legally sufficient.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order modified by reducing defendant's conviction of murder in
the second degree to manslaughter in the second degree and
remitting to Supreme Court, Kings County, for resentencing and,
as so modified, affirmed. Opinion by Judge Rivera. Chief Judge
Lippman and Judges Read, Smith and Abdus-Salaam concur. Judge
Pigott dissents in an opinion in which Judge Graffeo concurs.

Decided July 1, 2014




                                 - 6 -
