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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Carrie FULMORE, Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ. William G. Pixley, Rochester, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

 On appeal from a judgment convicting her upon a jury verdict of murder in the second degree (Penal Law §§ 20.00, 125. 25[2] ), defendant contends that Supreme Court erred in refusing to charge the jury that, in order to find her guilty of murder in the second degree, the jury was required to find that her state of mind was that of depraved indifference.   We agree.   As defendant correctly contends, she is “entitled to the application of current principles of substantive law upon [her] direct appeal from the judgment of conviction” (People v. Collins, 45 A.D.3d 1472, 1473, 846 N.Y.S.2d 829, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250;  see generally People v. Vasquez, 88 N.Y.2d 561, 573, 647 N.Y.S.2d 697, 670 N.E.2d 1328) and, during the pendency of this appeal, the Court of Appeals held that “depraved indifference to human life is a culpable mental state” (People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163).   Because the jury charge did not unambiguously state that depraved indifference was the culpable mental state for the crime with which defendant was charged, we cannot conclude “that the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at [a] decision” (People v. Russell, 266 N.Y. 147, 153, 194 N.E. 65;  see generally People v. Ladd, 89 N.Y.2d 893, 895, 653 N.Y.S.2d 259, 675 N.E.2d 1211).   We therefore reverse the judgment and grant a new trial (see generally People v. Barry, 46 A.D.3d 1340, 848 N.Y.S.2d 498).

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.