Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered April 21, 2006, convicting defendant, after a jury trial, of depraved indifference murder in the second degree, and sentencing him to a term of 25 years to life, affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., McGuire, Moskowitz, DeGrasse, Freedman, JJ.
On May 11, 2004, a firefighter conducting a routine building inspection discovered the body of 42-year-old Ana Almono Fowler on the roof of a building located at 401 East 187th Street in the Bronx. A black plastic bag covered Fowler's head and was knotted tightly around her neck. When Fowler's body was found, she was barefooted, her sweatshirt pulled up over one of her breasts and her jeans unzipped and pulled partially down. One of two beaded necklaces around Fowler's neck was broken and beads were missing. After the plastic bag was peeled from Fowler's head, a wound above her right eyebrow and a bruise to her right cheek were noted.
The building at 401 East 187th Street is privately owned and used by the City of New York as a temporary housing facility. Defendant resided in the building in apartment 5E until May 6, 2004. The hallway of each floor of the building is monitored by two video cameras. Videos in evidence depict defendant approaching Fowler and entering his apartment with her on May 5 at 9:08 p.m., stepping back into the hallway and looking at the video camera on May 6 at 2:30 a.m., and carrying Fowler's body to the roof on the same day at 10:40 a.m. Shortly thereafter, defendant is seen leaving his apartment carrying a piece of white cloth and then re-entering the apartment. Five minutes later, defendant is seen leaving the building carrying his belongings in a black plastic bag. Beads matching those on Fowler's broken necklace were found scattered throughout defendant's apartment by Detective Zoltan Karpati on May 13. Bloodstains were also found on the bedroom wall and door. On May 18, Detective Karpati took defendant into custody and escorted him to the precinct. While in custody, defendant made a series of statements of which five were handwritten and one videotaped.
According to defendant's statements, Fowler accompanied him to his apartment after agreeing to have sex with him in exchange for crack cocaine and money. Defendant stated that during the evening Fowler attacked him and he hit her in the head to protect himself. Thereafter Fowler became quiet and defendant fell asleep. Defendant stated that upon waking up the following morning, he heard Fowler's heartbeat, but he later denied hearing it. Defendant added that Fowler was bleeding and he placed the plastic bag on her head to stop the blood from spreading and because he couldn't stand to look at her. Thereafter, defendant dumped Fowler on the roof, gathered his possessions and vacated the building. A grand jury indicted defendant for depraved indifference murder and manslaughter in the first degree.
Dr. Zoya Shmuter of the Office of the Chief Medical Examiner of the City of New York performed an autopsy on Fowler's body. The autopsy revealed a one-half-inch laceration above Fowler's right eyebrow, purple discoloration of her face and abrasions on her cheek. Dr. Shmuter also found two abrasions on the right side of her neck. Upon opening the body's neck, Dr. Shmuter found hemorrhaging at the site of the abrasions. The hemorrhaging, Dr. Shmuter testified, was suggestive of a blunt force injury or compression. The autopsy report signed by Dr. Shmuter on May 27, 2004 listed the cause of death as blunt impact of the head and compression of the neck and chest.
Dr. James Gill, a deputy chief medical examiner, opined that the cause of Fowler's death was homicidal asphyxia. The term, Dr. Gill explained, encompasses smothering, compression of the neck, and compression of the chest. Dr. Gill explained that the purple discoloration of Fowler's face was consistent with neck compression. The anatomical findings noted by Dr. Gill also included bruising of the large muscle on the right side of Fowler's neck, indicative of force applied to the area. Dr. Gill noted similar bruising on the right side of Fowler's chest. Dr. Gill opined that bleeding is a sign of life in a human body inasmuch as it is indicative of a heartbeat. He further opined that placing a plastic bag over a person's head could cause death by asphyxia.
At the close of trial, citing People v Suarez (6 NY3d 202 ), defendant moved for an order of dismissal based upon the legal insufficiency of the evidence as follows:
"What I suggest here, Your Honor, and the depraved indifference cases tend to fall into, at least in recent years, instances of child abuse, or abuse of spousal abuse, or abuse by one person against another, whether there's a familial relationship or not, that is protracted, that is prolonged that occurs not merely as the Court of Appeals noted in Suarez, in the course of a single incident, as opposed to substantial instances where there is a single incident that is isolated in its framework of time as opposed to continuing over a course of time . . . So, therefore under either theory that the People may be presenting here, we still are confined to a time period that has a minimum of five and a half hours, and a maximum of 13 and a half hours, clearly an isolated attack, as opposed to a course of conduct engaged in which would be considered to have been torturous, where the conscious objective would have been ... to torture, to brutalize, to prolong and ultimately fatally bring to the end another person's life."*fn1
Citing People v Feingold (7 NY3d 288 ), defendant now challenges the legal sufficiency of the evidence as follows:
"The evidence in this case rationally supported three possibly antagonistic, but equally plausible hypotheses. Either the victim was in fact dead in the morning when appellant found her turning purple on the floor, in which case appellant killed her during their crack addled struggle the night before - a manslaughter theory which was argued against by the People and which leaves open the question of self defense... Or, appellant mistakenly and recklessly or negligently believed that the unconscious victim was already dead. He tied a bag over her face to avoid looking at her and inadvertently suffocated her - a reckless manslaughter or negligent homicide. Or, finally, as the prosecutor argued in summation, the appellant found the victim on the floor in the morning, knew that she was unconscious but still breathing and tied a bag over her face with a conscious objective to kill her - an intentional murder. No reasonable view of the evidence, however, is consistent with depraved indifference murder."
To preserve a legal sufficiency challenge for appellate review, a defendant must move for a trial order of dismissal, and the argument must be "specifically directed" at the error being urged (People v Hawkins, 11 NY3d 484, 492 ). As noted above, defendant's argument at trial was confined to calling into question the time frame with respect to the conduct constituting depraved indifference murder. We disagree with the dissent's view that in making this argument, defendant took the global position he now takes that the evidence did not establish the "brutal, prolonged and ultimately fatal course of conduct" required under Suarez (see People v Suarez, 6 NY3d at 212). In this regard, defendant's appellate challenge to the legal sufficiency of the evidence has not been preserved inasmuch as his trial motion to dismiss was based ...