People v. Ketter: “Course of Conduct” for Torture-Murder Attempt Requires Multiple Pain-Inflicting Acts; Psychological Terror Alone Is Insufficient

1. Introduction

In People v Ketter (2026 NY Slip Op 03848 [3d Dept June 18, 2026]), the Appellate Division, Third Department reviewed convictions arising from two separate burn attacks in Albany County: (1) an assault on victim A, who was doused with an accelerant and set on fire in public; and (2) an assault on victim B, defendant’s then-girlfriend, who suffered serious burns after defendant allegedly heated a pan and used it against her.

Defendant was convicted of attempted murder in the first degree, attempted murder in the second degree, and assault in the first degree (two counts). On appeal, the principal issues were: (a) whether the proof supported the “torture murder” subparagraph element for attempted first-degree murder—specifically a “course of conduct” intended to inflict and inflicting torture; (b) whether identity evidence was legally sufficient for the remaining counts; (c) whether the People properly admitted victim B’s grand jury testimony via forfeiture-by-wrongdoing after a mid-trial Sirois hearing; and (d) whether the remaining aggregate sentence was harsh and excessive.

2. Summary of the Opinion

The Third Department modified the judgment by reversing on the facts (weight of the evidence) the conviction for attempted murder in the first degree under count 1, dismissing that count and vacating its sentence. The court otherwise affirmed, upholding: (i) attempted murder in the second degree (victim A), (ii) assault in the first degree (victim A), and (iii) assault in the first degree (victim B), including the admission of victim B’s grand jury testimony after the People established forfeiture of confrontation rights by clear and convincing circumstantial evidence.

3. Analysis

3.1. Precedents Cited

A. Weight of the Evidence Framework

  • People v Bleakley (69 NY2d 490 [1987]) supplied the foundational methodology: the appellate court views the proof neutrally, asks whether a different verdict would have been unreasonable, then weighs probative force and competing inferences while giving deference to the jury’s credibility determinations.
  • The Third Department applied this rubric through its own recent formulations in People v Lerario (246 AD3d 1281 [3d Dept 2026]), People v Harris (246 AD3d 1293 [3d Dept 2026]), and People v Bessette (246 AD3d 1310 [3d Dept 2026]).

B. “Course of Conduct” in Torture-Murder (and Attempt)

  • The central interpretive authority was People v Estrella (41 NY3d 514 [2024]). The Court of Appeals held that to satisfy the “course of conduct” element under Penal Law § 125.27 (1) (a) (x), the People must prove “a series of distinct acts” before death “intended to inflict and actually inflict extreme physical pain.” Critically, planning/stalking do not count (they do not inflict physical pain), and it is insufficient if only the ultimate fatal act causes extreme pain.
  • The Third Department relied on its prior applications of this principle in People v Goodman (231 AD3d 1366 [3d Dept 2024]) and People v Smith (206 AD3d 1058 [3d Dept 2022]) to conclude the evidence did not meet the Estrella standard.

C. Legal Sufficiency and Identity Proof

  • For preservation and sufficiency principles, the court cited People v Dillon (231 AD3d 1352 [3d Dept 2024]) and evaluated identity proof under the familiar “light most favorable to the People” standard, referencing People v Quinn (210 AD3d 1284 [3d Dept 2022], lv denied 39 NY3d 1079 [2023]).
  • For weight-of-evidence affirmance on the remaining counts, the court cited People v Cruz (238 AD3d 1327 [3d Dept 2025], lv denied 43 NY3d 1054 [2025]).

D. Forfeiture-by-Wrongdoing / Sirois Hearing and Confrontation Clause

  • The governing New York forfeiture framework—often litigated via a Sirois hearing—was drawn from People v Cotto (92 NY2d 68 [1998]) (People’s “heavy burden,” clear and convincing evidence), People v Geraci (85 NY2d 359 [1995]) (forfeiture by misconduct; circumstantial proof is often necessary), and People v Maher (89 NY2d 456 [1997]) (misconduct by others on defendant’s behalf with knowing acquiescence).
  • On the Sixth Amendment confrontation implications and the specific forfeiture test—misconduct aimed at preventing testimony that significantly caused the witness’s unavailability—the court relied on People v Smart (23 NY3d 213 [2014]).
  • The court also cited Matter of Holtzman v Hellenbrand (92 AD2d 405 [2d Dept 1983]) (procedural lineage of Sirois-type hearings), and supporting applications including People v Encarnacion (87 AD3d 81 [1st Dept 2011], lv denied 17 NY3d 952 [2011]), People v Kellum (233 AD3d 1374 [3d Dept 2024], lv denied 44 NY3d 983 [2025]), People v Jernigan (41 AD3d 331 [1st Dept 2007], lv denied 9 NY3d 923 [2007]), and People v Major (251 AD2d 999 [4th Dept 1998], lv denied 92 NY2d 927 [1998]).

E. Ineffective Assistance and Accomplice-Corroboration Concepts

  • The “meaningful representation” standard was drawn from People v Benevento (91 NY2d 708 [1998]) and applied consistently with People v George (242 AD3d 1447 [3d Dept 2025], lv denied 45 NY3d 945 [2026]).
  • The court rejected an accomplice-as-a-matter-of-law theory under CPL 60.22 (2), citing People v Caban (5 NY3d 143 [2005]).

F. Sentencing Review

  • The court upheld the remaining aggregate term as warranted, citing People v Smith (242 AD3d 1370 [3d Dept 2025], lv denied 45 NY3d 939 [2026]) and People v Dorvil (234 AD3d 1106 [3d Dept 2025], lv denied 44 NY3d 982 [2025]).

3.2. Legal Reasoning

A. The New Clarification: Distinct Acts Must Inflict Extreme Physical Pain

The opinion’s core doctrinal move is its strict application of People v Estrella to a two-step ignition sequence (dousing with accelerant, then lighting the victim on fire). The Third Department assumed, for the sake of argument, that “dousing” and “igniting” could be characterized as “distinct acts.” Even with that assumption, the conviction failed because the court held that, on these facts, dousing with accelerant did not itself “actually inflict extreme physical pain.”

The court acknowledged the “deplorable purpose” and the psychological terror inherent in being doused, but held that psychological terror is not a substitute for the statute’s requirement of extreme physical pain as part of the “course of conduct” (tracking Estrella’s physical-pain requirement). Since only the ignition produced extreme physical pain, the conduct amounted—legally—to one pain-inflicting act, which Estrella deemed insufficient to constitute a “course of conduct.”

B. Procedural Posture: Legal Sufficiency Unpreserved, But Weight Review Decisive

Defendant’s legal sufficiency arguments on attempted first-degree murder were unpreserved, but the court used weight-of-evidence review to reach the dispositive conclusion that the “course of conduct” element was not proven beyond a reasonable doubt. Notably, the court reversed “on the facts” and dismissed count 1, signaling that—even crediting much of the People’s narrative—the statutory torture component was not met under the Estrella definition.

C. Identity and Remaining Counts: Conventional Sufficiency and Weight Analysis

For the remaining counts, the court found legally sufficient identity proof: victim A and a bystander (both familiar with defendant) identified defendant; cell phone activity records and video connected him to the scene; and victim B’s grand jury testimony identified defendant as her assailant. Although the defense highlighted inconclusive DNA, inconsistencies, and the jury’s inability to observe victim B live, the Third Department deferred to the jury’s credibility judgments and found the verdicts supported by the weight of the evidence.

D. Forfeiture of Confrontation: Circumstantial Proof and the “Sequence of Events”

The court’s forfeiture analysis is a detailed application of People v Smart, People v Geraci, and People v Cotto. The court emphasized that witness tampering is “inherently surreptitious,” so circumstantial proof and the sequence/timing of events may carry the People’s clear-and-convincing burden.

The evidence credited by the court included: persistent expressions of fear by victim B; references to threats conveyed through defendant’s jail communications; victim B’s relocation for safety; the lifting of a protective order and defendant’s receipt of discovery shortly before trial; recorded jail calls discussing the significance of witnesses not testifying; coded/colloquial references to “JuJu” that the court found were supported by multiple corroborating details as meaning victim B; the uncle’s statements suggesting removal (“Ju gotta go”); a text message arranging a meeting; surveillance footage of victim B being physically guided into a car; and the car’s travel toward New York City consistent with neighborhood-source reports.

The court also rejected the argument that the People had to pursue a material witness order or undertake additional location efforts, relying on People v Kellum for the proposition that such steps are not prerequisites where the defendant’s misconduct is established as a significant cause of unavailability.

3.3. Impact

A. Narrowing “Torture” Liability in Rapid, Two-Step Attacks

People v Ketter reinforces and operationalizes People v Estrella by making clear that courts will scrutinize whether each asserted “distinct act” actually inflicted “extreme physical pain,” not merely terror, humiliation, domination, or anticipation of pain. Practically, this limits Penal Law § 125.27 (1) (a) (x) (and attempts) in cases where the cruelty is extreme but the pain is inflicted principally by a single culminating act (e.g., a single ignition, single stabbing episode, or single shooting), even if preceded by menacing preparatory steps.

B. Charging and Proof Consequences

Prosecutors seeking attempted first-degree murder under the torture subparagraph must be prepared to present evidence of multiple pain-inflicting acts—each intended to inflict and actually inflicting extreme physical pain—rather than relying on: (i) psychological terror, (ii) threats or stalking, (iii) preparatory conduct that does not itself produce extreme pain, or (iv) a single act producing catastrophic pain.

Conversely, defendants may use Ketter to argue that a multi-step sequence should not be treated as a torture “course of conduct” unless the People can articulate and prove the pain inflicted at each step.

C. Strengthening Forfeiture-by-Wrongdoing via Discovery-Timing Evidence

On confrontation forfeiture, Ketter underscores that the timing of discovery access, followed by recorded jail calls and immediate witness disappearance, can be potent circumstantial proof that misconduct “aimed at least in part” at preventing testimony was a significant cause of unavailability. The decision may encourage more frequent Sirois litigation where there is (1) jail-call evidence and (2) an abrupt change in witness cooperation near trial.

4. Complex Concepts Simplified

  • “Course of conduct” (torture murder): Not just “more than one step.” It requires multiple separate acts, and each act must be intended to cause and must actually cause extreme physical pain.
  • Weight of the evidence vs. legal sufficiency: Sufficiency asks whether any rational juror could convict when viewing the proof most favorably to the People. Weight review is a broader, neutral assessment of whether the jury’s verdict is supported when the appellate court considers conflicts and credibility (still deferring to the jury’s vantage point).
  • Sirois hearing / forfeiture by wrongdoing: Normally, the Sixth Amendment lets a defendant confront (cross-examine) witnesses. If the defendant causes a witness not to testify—through threats, intimidation, or arranging removal—the defendant can forfeit that right, allowing prior testimony (like grand jury testimony) to be used.
  • Clear and convincing evidence: A higher standard than “more likely than not,” requiring strong, persuasive proof—though it may be circumstantial, especially in witness-tampering contexts.

5. Conclusion

People v Ketter is most significant for its rigorous application of People v Estrella: to prove the torture-murder “course of conduct” element (and its attempt analogue), the People must show multiple distinct acts that actually inflict extreme physical pain; psychological terror and morally reprehensible preparatory acts do not fill that statutory role. The court’s dismissal of attempted first-degree murder on weight grounds illustrates that even extraordinarily brutal attacks may fall outside this subparagraph when the pain is inflicted by only one act.

At the same time, the decision affirms robust use of forfeiture-by-wrongdoing doctrine: when circumstantial evidence—especially the sequence of discovery access, recorded jail communications, and abrupt witness disappearance—supports a finding that the defendant procured unavailability, grand jury testimony may be admitted without violating confrontation rights.