The opinion of the court was delivered by: Ciparick, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We are asked to consider whether the evidence was sufficient to show that defendant possessed the culpable mental state of depraved indifference to human life to warrant a conviction for murder in the second degree as per (Penal Law § 125.25 ) (depraved indifference murder of a child under 11 years old). We hold that the record does not support such a finding and that the conviction for second-degree depraved indifference murder of a child must be vacated.
In the early evening hours of September 18, 2004, while defendant was out shopping, defendant's partner, Carmen Molina, severely beat defendant's 23-month-old son. In the course of the beating, the child's leg and several ribs were broken. Additionally, the child suffered injuries to his liver and lungs, which caused severe internal bleeding. When defendant returned home at approximately 7:00 P.M., Molina informed defendant that she would be upset and that her son was injured. Defendant knew at this time her son "was hurt bad." She claimed that her son had "a bump on his head and one on his leg." She testified that she did not, however, believe he was "seriously" injured or "that he was going to die." At Molina's urging, defendant initially elected not to call for help. Molina told defendant that if they called the police they would both get in trouble and defendant would lose her children. Instead, again at Molina's request, defendant went to a local pharmacy to purchase a splint for her son's leg. The pharmacy did not carry splints so defendant purchased ACE bandages, and Molina and defendant created a makeshift splint using the bandages and slats from a crib. After splinting the leg, defendant gave her son some children's ibuprofen and laid him down to sleep. She claimed that just prior to laying the child down, he said "night night." After placing the child in bed, defendant smoked a cigarette and then went outside to make some phone calls from a pay phone at a local sandwich shop. Defendant called Molina's mother and her own mother. She did not mention her child's condition to either during these phone calls. She returned home and approximately seven hours after she discovered that her child had been severely injured, she claims she heard him whimpering. She picked him up and discovered blood flowing from his rectum. Molina took the child from defendant and ordered defendant to clean up the bloody clothes and sheets. Defendant disposed of them as well as the makeshift splint. Defendant then called the police from a neighbor's phone. The police and EMS arrived. According to defendant, the child became unresponsive prior to the arrival of EMS. The EMS technicians were unable to revive the child and he was rushed to the hospital. Doctors at the hospital were also unable to revive the child, and he was pronounced dead at 2:26
During questioning by the police, defendant provided varying accounts of what had happened to her son. Initially she claimed that her son fell at approximately 9:00 P.M. while she was bathing him. Additionally, she claimed that her son would bang his head against the wall during the night. She subsequently accused the child's father, who was in Michigan, of using witchcraft and causing the bruises. When confronted by the police that her stories simply could not be true she eventually admitted that Molina had beaten the child and that she had assisted Molina in splinting the leg and attempting to dispose of the bloody clothes and bandages. After being advised of her Miranda rights, defendant executed a written and oral statement confirming that Molina had beaten the child and that defendant had helped to hide the evidence.
The medical evidence presented at trial showed that the child had died from "fatal child abuse syndrome" and had multiple blunt impacts to his head, torso and extremities that fractured his leg and ribs and lacerated his liver. The medical experts at the trial opined that the child would have been in severe pain for several hours before going into shock and that gradually his vital organs would have shut down. Additionally, the medical experts stated that it was unlikely that the child, after suffering these injuries, would have slept peacefully or woken up after having lost consciousness.
Defendant and Molina were arrested and a grand jury returned an
indictment charging both women with two counts each of murder in the
second degree (Penal Law § 125.25  [depraved indifference murder
resulting from conduct creating a grave risk of death] and Penal Law §
125.25  [depraved indifference murder resulting from conduct
creating a grave risk of serious injury or death of a child under
11])*fn1 , and two counts of
endangering the welfare of a child with regard to
defendant's older daughter (Penal Law § 260.10 , ). Defendant
and Molina each moved to suppress their statements and evidence seized
from their apartment. Supreme Court denied the motions. On April 25,
2007, Molina pleaded guilty to second-degree murder and was sentenced
to an indeterminate period of imprisonment of 15 years to life. On
January 25, 2008, defendant proceeded to trial before a jury. On
February 7, 2008, the jury acquitted defendant of depraved
indifference murder, but convicted her of depraved indifference murder
of a child and both counts of endangering the welfare of a child. She
was sentenced to an indeterminate period of imprisonment of 20 years
to life. The Appellate Division affirmed (see People v Matos, 83 AD3d
529 [1st Dept 2011]). A judge of this Court granted defendant leave to
appeal (17 NY3d 808 ) and we now modify by vacating the murder
We have visited the issue of depraved indifference murder on several occasions. In People v Feingold (7 NY3d 288 ), we explained that "[d]epraved indifference to human life is a culpable mental state" that "is best understood as an utter disregard for the value of human life -- a willingness to act not because one intends harm, but because one simply doesn't care whether grevious harm results or not" (id. at 296, quoting People v Suarez, 6 NY3d 202, 214 ).
The issue presented in this case is similar to the one presented in People v Lewie (17 NY3d 348 ), where we examined the culpable mental state of a mother whose boyfriend fatally abused her child.*fn2 In Lewie the mother of the decedent brought her child into the hospital where he expired (see id. at 353). At the time of the child's death he "had injuries consistent with very severe abuse" (id. at 354).
The mother in Lewie was prosecuted on two theories: first that she
failed to seek medical attention in the last two or three days of her
child's life, when she knew that her child had life-threatening
injuries, and second that she left the child in the care of her
boyfriend when she knew that to do so would
place the child in danger (see id.).*fn3
In Lewie we focused on the mother's decision to leave the child with
the boyfriend (see id. at 355).*fn4 Here, we are
focused on defendant's failure to seek medical attention. While we
concede that defendant's behavior fell egregiously short of what we
would expect from an ordinary person, faced with a child in such
distress, to say nothing of a mother of said child, it does not rise
to the level of "wickedness, evil or inhumanity" so "as to render the
actor as culpable as one whose conscious objective is to kill"
(Suarez, 6 NY3d at 214). Indeed, while she did, as the Appellate
Division found, "place her own interests ahead of her son's need for
medical treatment" (Matos, 83 AD3d at 531), the People failed to prove
that she did not care whether her son lived or died. The evidence
showed that she splinted her son's leg, gave him ibuprofen and
exhibited other, albeit woefully inadequate, measures to comfort him.
Additionally, when she found him bleeding and unresponsive, she did,
in fact, call for help. It is undeniable that this behavior was a
quintessential case of far too little, far too late; it does however,
demonstrate that while
the evidence clearly shows that defendant "cared much too
little about her child's safety, it cannot support a finding that she
did not care at all" (Lewie, 17 NY3d at 359). As for the fact that she
attempted to conceal the crime, that also does not evince a mental
state of depraved indifference. "Trying to cover up a crime does not
prove indifference to it" (id. at 360).
Thus, the evidence of depraved indifference was legally insufficient, and the conviction for second degree murder cannot be sustained.
We acknowledge that defendant's actions here may have come within Penal Law § 125.25 (4) when it was first enacted in 1990. It must be noted, however, that when the Legislature enacted Penal Law § 125.25 (4) "depraved indifference" was not considered to be a mens rea but simply a "definition of the factual setting in which the risk creating conduct must occur" (People v Register, 60 NY2d 270, 276 ). However, in the wake of Feingold and its progeny we are constrained to interpret "depraved indifference" to human life as a culpable mental state which must be proven by the People (see 7 ...