PEOPLE v. LAGASSE (2008)

 On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[2] [depraved indifference murder] ), defendant contends that the conviction is not supported by legally sufficient evidence.   We agree.   Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally insufficient to prove beyond a reasonable doubt that defendant “acted with the culpable mental state of depraved indifference” (People v. Swinton, 7 N.Y.3d 776, 777, 820 N.Y.S.2d 537, 853 N.E.2d 1105, rearg. denied 7 N.Y.3d 864, 824 N.Y.S.2d 609, 857 N.E.2d 1140, citing People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 “A defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” (People v. Suarez, 6 N.Y.3d 202, 212, 811 N.Y.S.2d 267, 844 N.E.2d 721), and we conclude that those circumstances are not present here.   The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists.   Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was “fine.”   The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table.   We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (see People v. Mancini, 7 N.Y.3d 767, 819 N.Y.S.2d 855, 853 N.E.2d 224;  Suarez, 6 N.Y.3d at 212, 811 N.Y.S.2d 267, 844 N.E.2d 721;  People v. Kibbe, 35 N.Y.2d 407, 413, 362 N.Y.S.2d 848, 321 N.E.2d 773, rearg. denied 37 N.Y.2d 741, 374 N.Y.S.2d 1028, 337 N.E.2d 147), nor was there evidence of “torture or a brutal, prolonged ․ course of conduct against a particularly vulnerable victim” (Suarez, 6 N.Y.3d at 212, 811 N.Y.S.2d 267, 844 N.E.2d 721;  see People v. Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167).  “Whether he intended to kill [the victim] or merely to cause [him] serious injury-and either of these findings, supported by sufficient evidence, might have been properly made by the jury-defendant's actions in no way reflected a depraved indifference to [the victim's] fate” (Suarez, 6 N.Y.3d at 216, 811 N.Y.S.2d 267, 844 N.E.2d 721).

We reject the contention of defendant that he may not be retried on the remaining counts of the indictment (see Matter of Suarez v. Byrne, 10 N.Y.3d 523, 541, 860 N.Y.S.2d 439, 890 N.E.2d 201, rearg. denied 11 N.Y.3d 753, 864 N.Y.S.2d 801, 894 N.E.2d 1191) and, in view thereof (see generally People v. Acosta, 289 A.D.2d 975, 735 N.Y.S.2d 272, lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356), we note that County Court properly refused to suppress defendant's statements to the police inasmuch as those statements were spontaneously made and were not made in response to questions of an accusatory nature (see People v. Bailey, 50 A.D.3d 343, 854 N.Y.S.2d 719;  People v. Brown, 23 A.D.3d 1090, 1092, 804 N.Y.S.2d 209, lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 449, 845 N.E.2d 1280).   Because we are granting a new trial, we do not address defendant's remaining challenge to the severity of the sentence.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the first count of the indictment is dismissed and a new trial is granted on the second and third counts of the indictment.

MEMORANDUM: