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People v. Lessey

Supreme Court of New York, New York County

May 29, 2013

The PEOPLE of the State of New York, Plaintiff,
Andrew LESSEY, Defendant.

[966 N.Y.S.2d 849] New York County District Attorney Cyrus R. Vance, Jr. (Larry Glasser and Tatiana Amlin, of counsel) for the People.

Andrea Hoyos and Wilson Soto for the Defendant.


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This opinion concerns a question which may be addressed this term by the Court of Appeals but arose in the instant matter as the most significant legal issue during the Defendant's trial: can a defendant's voluntary intoxication be used in an appropriate case to negative the mental state of depraved indifference to human life? See People v. Heidgen, 87 A.D.3d 1016, 930 N.Y.S.2d 199 (2nd Dept. 2011), lv. granted, 17 N.Y.3d 957, 936 N.Y.S.2d 83, 959 N.E.2d 1032. This Court concludes that the answer to that question under current law is clearly yes.


The Defendant was charged with one count of Assault in the First Degree in violation of Penal Law § 120.10(3). It was alleged that, under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of death to another person and thereby caused serious physical injury to that person.[1] The People charged that the Defendant pushed a 63-year-old man who was previously unknown to him onto the subway tracks of the Times Square subway station at approximately 4:55 A.M. on Saturday morning, February 25, 2012. The victim was not hit by a train but suffered significant injuries including a badly broken kneecap, a broken nose, a broken elbow and a concussion. The incident followed a night which Mr. Lessey had spent at a nightclub where he consumed alcohol. Multiple witnesses and videotape from the subway station showed that the Defendant was acting in an highly belligerent and intoxicated manner prior to the assault and that he had verbally and physically abused other train passengers immediately prior to the crime. Mr. Lessey testified and said he had blacked out after the crime and could not remember the incident. The defense claimed, however, that Mr. Lessey may

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have been involuntarily intoxicated by a drug of some kind which the defense claimed may have been slipped into his drink by a man he had met at the nightclub who accompanied him to the train station.

At the close of the evidence, the defense asked that the Court instruct the jury that in determining whether the Defendant acted with depraved indifference, the jury could consider whether the Defendant's mind was affected by intoxicants to a such a degree that he was incapable of forming that mental state. The defense asked for the optional standard pattern jury charge on that issue. See PL § 15.25; Criminal Pattern Jury Instructions (" CJI" ), PL § 120.10(3). The People argued that no such instruction was authorized, citing People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983) (discussed infra ) and other authorities and urged instead that the Court instruct the jury that voluntary intoxication could not negative depraved indifference. The People acknowledged, however, that assuming it would be proper to give the instruction requested by the defense in an appropriate case, the evidence in the instant matter supported such a charge. The Court granted the Defendant's application. The defense also moved and the People consented to charge the jury on the lesser included offense of Assault in the 3rd Degree, a Class A misdemeanor under PL § 120.00(2). That crime occurs when a defendant recklessly causes physical injury to another person. After a full day of deliberations and multiple read-backs of the legal definitions of the crime elements, including the effect of intoxication on a defendant's liability for depraved indifference, the jury found the Defendant not guilty of Assault in the First Degree but guilty of Assault in the Third Degree.


The Penal Law Clearly Provides tat Intoxication Can Negative Depraved Indifference

The basic legal landscape relevant to the instant issue is well understood and will be briefly outlined here. In People v. Register, the Court considered the meaning of the term " depraved indifference to human [966 N.Y.S.2d 851] life" with respect to the use of that term in the " depraved mind murder" provision of the second degree murder statute. PL § 125.25(2). The Court held that the term " depraved indifference to human life" did not refer either to the mental state required for the crime or the acts constituting it. The Court held that if the term referred to " an

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element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur." 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704. Continuing, the Court held, evidence of a defendant's intoxication could not negative such a factual setting since " depraved indifference to human life" referred to " objective circumstances which are not subject to being negatived by evidence of defendant's intoxication."

In a series of cases culminating in its decision in People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006), however, the Court explicitly overruled its conclusion in Register that depraved indifference was an objective circumstance. Rather, the Court held, " depraved indifference to human life is a culpable mental state" . 7 N.Y.3d at 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163. The Feingold Court did not rule on whether this new conception of depraved indifference modified the Register court's holding that intoxication could not be used to negative depraved indifference. As discussed infra, various courts have discussed the issue and reached varying conclusions about it since then.

In this Court's view, the conclusion that intoxication can be used to negative depraved indifference, after Feingold, is clear. That conclusion is compelled by the plain language of the Penal Law. PL § 15.25 provides that:

Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

When depraved indifference to human life was not a mental state, an act or a true crime element, the Court's conclusion in Register made perfect sense. When depraved indifference was considered to be an objective circumstance in which a crime occurred, then, obviously, that objective circumstance could not possibly vary with the defendant's level of intoxication. Now that depraved indifference is a culpable mental state, however, there is no basis to treat it differently than other mental states when considering the impact of intoxication.

The intoxication rule of PL § 15.25 applies to any " element of the crime charged" . There is no question, following Feingold, that the mental state of depraved indifference to human life is an essential element of the crime of Assault in the First Degree. See, e.g., People v. Brandi E., 105 A.D.3d 1341, 964 N.Y.S.2d 355 (4th Dept. 2013);

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People v. Hakim-Peters, 92 A.D.3d 1030, 937 N.Y.S.2d 759 (3d Dept. 2012); People v. Huntington, 57 A.D.3d 1238, 869 N.Y.S.2d 702 (3d Dept. 2008). " Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning." People v. Kisina, 14 N.Y.3d 153, 158, 897 N.Y.S.2d 684, 924 N.E.2d 792 (2010), quoting Matter of Tall Trees Constr. Corp. v. Zoning Bd. of Appeals of Town of Huntington, 97 N.Y.2d 86, 91, 735 N.Y.S.2d 873, 761 N.E.2d 565 (2001); Kramer v. Phoenix Life Ins. Co., 15 N.Y.3d 539, 550, 914 N.Y.S.2d 709, 940 N.E.2d 535 (2010). " The Legislature is presumed to mean what it says, and if there is no ambiguity [966 N.Y.S.2d 852] in the act, it is generally construed according to its plain terms." McKinney's Cons. Laws of N.Y., Book 1, Statutes § 94 (hereinafter " Statutes" ). See also, Simon v. Usher, 17 N.Y.3d 625, 628, 934 N.Y.S.2d 362, 958 N.E.2d 540 (2011).[2]

Given the fact that the plain meaning of the Penal Law provides that intoxication can be used to negative the mental state of depraved indifference, the question then becomes what factors lend further support or call into question the proposition that the Penal Law on this point should be read as it is written. Initially, there are multiple reasons, in addition to the statute's plain meaning, which support the view that intoxication can negative depraved indifference. First, in accordance with its plain meaning, Penal Law § 15.25 has always been understood to apply to the mens rea element of crimes. It has been routinely applied to negative the mental state of intent in appropriate circumstances. See, e.g., People v. Rodriguez, 76 N.Y.2d 918, 563 N.Y.S.2d 48, 564 N.E.2d 658 (1990); People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 462 N.E.2d 143 (1984); People v. McCray, 56 A.D.3d 359, 867 N.Y.S.2d 440 (1st Dept. 2008), lv. denied, 12 N.Y.3d 760, 876 N.Y.S.2d 712, 904 N.E.2d 849 (2009); People v. Raffaele, 41 A.D.3d 869, 841 N.Y.S.2d 311 (2d Dept. 2007), lv. denied, 9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899; People v. Stewart, 296 A.D.2d 587, 744 N.Y.S.2d 569 (3d Dept. 2002).

Second, where the Legislature has determined that intoxication should not be available to negative a mental state, they have said so. That is apparent, of course, in the definition of the mental state of recklessness under the Penal Law § 15.05(3). Recklessness occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk and when that disregard constitutes a gross deviation from the standard that a reasonable person would observe. The statute provides that " [a] person who creates such a risk but is unaware thereof solely by

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reason of voluntary intoxication also acts recklessly with ...

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