People v. Monahan: Shooting Toward Occupied Departing Vehicles Supports Depraved-Indifference Murder; Tampering May Be Inferred from Missing Ballistic Debris and Post-Event Cleaning

I. Introduction

In People v Monahan (2026 NY Slip Op 03703 [3d Dept June 11, 2026]), the Appellate Division, Third Department affirmed convictions for murder in the second degree (depraved indifference), reckless endangerment in the first degree, and tampering with physical evidence arising from a rural driveway shooting.

A group of seven young adults, traveling in two SUVs and a motorcycle, mistakenly drove up defendant Kevin Monahan’s driveway believing his home was the party location. As the vehicles were turning around to leave, Monahan went onto an elevated deck with a shotgun and the gun discharged twice; the second shot struck an SUV and killed a passenger. After initially telling police and a 911 dispatcher that he and his wife were “sound asleep,” the investigation revealed inconsistencies, including missing shell/wadding evidence.

The appeal raised four central clusters of issues:

  • Proof issues: legal sufficiency and weight of the evidence for depraved-indifference murder, reckless endangerment, and tampering.
  • Discovery/Rosario: whether belated disclosures required stronger sanctions or reversal.
  • Trial error: whether a brief bodycam reference to defense counsel required a mistrial.
  • Jury charge and sentence: lesser-included charge dispute and alleged harshness of the sentence.

II. Summary of the Opinion

The Third Department affirmed across the board. It held:

  • There was legally sufficient evidence that defendant, under circumstances evincing depraved indifference, recklessly created a grave risk of death and caused death by firing toward occupied vehicles that were already leaving.
  • The verdict was not against the weight of the evidence; the jury reasonably rejected defendant’s “accidental discharge” account given inconsistencies and contrary proof.
  • The evidence was legally sufficient and weight-supportive of tampering, permitting an inference that defendant cleaned the shotgun and concealed/disposed of shells/wadding.
  • Any belated disclosure was remedied appropriately (recalling the wife), and the “training certificates” issue was abandoned on appeal.
  • The brief bodycam mention of counsel was, at most, harmless error under the overwhelming evidence standard.
  • Claims of summation misconduct and jury charge error did not warrant reversal; the criminally negligent homicide request was deemed harmless in light of the guilty verdict and rejection of the charged lesser offense.
  • The sentence—25 years to life on the A-I felony, plus a consecutive term on tampering—was not unduly harsh or severe.

III. Analysis

A. Precedents Cited

1. Appellate review: legal sufficiency, weight, and deference

  • People v Williams, 239 AD3d 1090 (3d Dept 2025), lv denied 44 NY3d 985 (2025): supplied the sufficiency lens—viewing evidence in the light most favorable to the People and asking whether a rational jury could find each element beyond a reasonable doubt.
  • People v Smith, 237 AD3d 1367 (3d Dept 2025), lv denied 43 NY3d 1059 (2025): framed the two-step weight review (whether a different verdict would be unreasonable; if not, weigh conflicting proof and inferences).
  • People v Marcantonio, 238 AD3d 1262 (3d Dept 2025): emphasized appellate deference to jurors’ ability to observe demeanor and assess credibility.

2. Depraved indifference and recklessness: the controlling definitions

  • People v Bender, ___ NY3d ___, 2026 NY Slip Op 01444 (2026): modern articulation of depraved indifference as “utter disregard for the value of human life”—acting not intending harm, but not caring whether grievous harm results. The Third Department treated Bender as the conceptual anchor and reminded that depraved indifference is “highly fact-specific.”
  • People v Suarez, 6 NY3d 202 (2005): classic formulation—conduct “so wanton” and “so devoid of regard” as to be as culpable as intentional killing.
  • People v Dorvil, 234 AD3d 1106 (3d Dept 2025), lv denied 44 NY3d 982 (2025): provided both (i) the recklessness definition (awareness and conscious disregard of a substantial, unjustifiable grave risk; gross deviation), and (ii) a close analogue supporting depraved-indifference findings in weapons/firearm endangerment contexts.

3. “Shooting into a crowd” analogy and firearm depravity cases

  • The opinion invoked the “quintessential” example from People v Saurez, 6 NY3d at 214 (as spelled in the opinion), describing shooting into a crowd as paradigmatic depraved indifference. The court extended the logic: firing multiple shotgun rounds toward known occupied vehicles in close proximity on a driveway can be “akin to shooting into a crowd.”
  • People v Perkins, 203 AD3d 1337 (3d Dept 2022), lv denied 38 NY3d 1035 (2022), and People v Maeweather, 172 AD3d 1646 (3d Dept 2019), lv denied 34 NY3d 1017 (2019): reinforced that depravity and recklessness can be established even if the defendant lacks perfect knowledge of the number or identity of persons at risk, so long as he is aware he is endangering human beings.
  • People v Serrano, 173 AD3d 1484 (3d Dept 2019), lv denied 34 NY3d 937 (2019), and People v Durham, 146 AD3d 1070 (3d Dept 2017), lv denied 29 NY3d 1078 (2017): supported the inference that firearm handling and firing choices can demonstrate conscious disregard and an “utter disregard” mental state.

4. Tampering with physical evidence by concealment/cleaning: circumstantial proof

  • People v Cotto, 231 AD3d 1356 (3d Dept 2024), lv denied 43 NY3d 962 (2025), and People v Sanders, 185 AD3d 1280 (3d Dept 2020), lv denied 35 NY3d 1115 (2020): validated the use of circumstantial facts (missing items, altered condition of evidence, actions consistent with concealment) to infer intentional suppression or concealment to prevent use in proceedings.
  • People v Franklin, 216 AD3d 1304 (3d Dept 2023), lv denied 40 NY3d 934 (2023): further supported weight-of-evidence affirmance where competing inferences exist but the jury chooses concealment/tampering inferences.
  • People v Wright, 22 AD3d 873 (3d Dept 2005), lv denied 6 NY3d 761 (2005): used to hold the duplicity challenge waived by failure to timely move pretrial.

5. Credibility and inconsistent statements as a basis to reject the defense narrative

  • People v Sanchez, 32 NY3d 1021 (2018): cited for the weight-review formulation emphasizing probative force of conflicting evidence/inferences.
  • People v Prusinski, 242 AD3d 1427 (3d Dept 2025), lv denied 45 NY3d 938 (2026), People v Timmons, 78 AD3d 1241 (3d Dept 2010), lv denied 16 NY3d 837 (2011), and People v Jackson, 65 NY2d 265 (1985): supported the proposition that proven lies and inconsistencies can justify rejection of other exculpatory testimony and bolster the People’s narrative.

6. Discovery/Rosario remedies and expert material

  • People v Jordan, 232 AD3d 1135 (3d Dept 2024), lv denied 43 NY3d 945 (2025): applied under CPL 245.80 for “appropriate and proportionate” remedies for belated disclosures; the recall of a witness can cure prejudice.
  • People v White, 239 AD3d 1037 (3d Dept 2025), lv denied 44 NY3d 985 (2025): used to deem abandoned the challenge to County Court’s ruling that a trooper’s testimony was not expert opinion (thereby mooting any claim to expert-related disclosures).

7. Reference to counsel on bodycam: harmless constitutional error

  • People v Lentini, 163 AD3d 1052 (3d Dept 2018): reiterated that using a defendant’s invocation of counsel can be prejudicial and improper in the People’s case-in-chief.
  • People v Serrano, 200 AD3d 1340 (3d Dept 2021), affd 38 NY3d 1180 (2022), and People v Peguero-Sanchez, 29 NY3d 965 (2017): established that such errors are not automatically reversible and are subject to harmless error analysis.
  • People v Johnson, 150 AD3d 1390 (3d Dept 2017), lv denied 29 NY3d 1128 (2017), plus People v Flower, 173 AD3d 1449 (3d Dept 2019), lv denied 34 NY3d 931 (2019), People v Hajratalli, 200 AD3d 1332 (3d Dept 2021), lv denied 38 NY3d 1033 (2022), and People v Garcia, 203 AD3d 1228 (3d Dept 2022), lv denied 38 NY3d 1032 (2022): guided the “overwhelming proof/no reasonable possibility of contribution” inquiry and underscored the curative-instruction presumption.

8. Summation latitude

  • People v Graham, 215 AD3d 998 (3d Dept 2023), lv denied 40 NY3d 928 (2023): described counsel’s right to argue reasonable inferences.
  • People v Birch, 228 AD3d 991 (3d Dept 2024), lv denied 42 NY3d 969 (2024), and People v Gertz, 204 AD3d 1166 (3d Dept 2022), lv denied 38 NY3d 1070 (2022): set the “egregiousness” and prejudice framework for prosecutorial misconduct.
  • People v Mastowski, 155 AD3d 1624 (4th Dept 2017), lv denied 30 NY3d 1117 (2018), and People v Johnson, 183 AD3d 77 (3d Dept 2020), lv denied 35 NY3d 993 (2020): supported fair-comment arguments about credibility based on record proof.
  • People v Pitt, 170 AD3d 1282 (3d Dept 2019), lv denied 33 NY3d 1072 (2019), and People v Graham, 233 AD3d 1361 (3d Dept 2024), lv denied 43 NY3d 944 (2025): used to conclude the prosecutor’s law-and-evidence illustration was permissible and that a promptly withdrawn misstatement did not mandate reversal.

9. Lesser-included offense charging error and harmlessness after verdict

  • People v Scott, 203 AD2d 911 (4th Dept 1994), lv denied 83 NY2d 971 (1994), and People v Mannix, 302 AD2d 297 (1st Dept 2003), lv denied 100 NY2d 622 (2003): supported the rule that once a jury convicts of the top count and implicitly rejects a charged lesser, failure to charge an even lower lesser is harmless/foreclosed in this posture.
  • People v McIntosh, 33 NY3d 1064 (2019): supplied the harmless-beyond-a-reasonable-doubt framing for the jury-charge claim in these circumstances.

10. Sentence review

  • People v Stahli, 159 AD3d 1055 (3d Dept 2018), lv denied 31 NY3d 1088 (2018), and People v Guzy, 167 AD3d 1230 (3d Dept 2018), lv denied 33 NY3d 948 (2019): used to support deference to sentencing discretion where the court considered mitigation but also the gravity of harm and lack of responsibility.

B. Legal Reasoning

1. Depraved indifference applied to firing at departing vehicles

The opinion’s core move is to treat the driveway shooting as functionally similar to firing into a group of people: even without knowing the exact number of occupants, defendant knew he was firing toward occupied vehicles in close proximity. The court emphasized three proof pillars:

  • Directionality and position: reconstruction evidence showed the fatal slug entered the vehicle “in a downward direction from an elevated position” while the vehicle was “facing down the driveway, away from the house.”
  • Temporal proximity and exit posture: multiple witnesses placed the two discharges within seconds while vehicles were turning around or already leaving—reducing any claim of an ongoing threat.
  • Eyewitness observations: testimony supported that defendant pointed the shotgun toward the vehicles; debris impact after the first shot supported that it was not merely “up into the air.”

From these facts, the court held a rational jury could find the defendant acted with the Bender/Suarez level of “utter disregard,” satisfying depraved indifference for murder (Penal Law § 125.25 [2]) and the parallel mental-state component for reckless endangerment (Penal Law § 120.25).

2. Rejecting the “accidental discharge” narrative on weight review

The panel acknowledged an important point: on mens rea, “a different verdict may not have been unreasonable” if the jury had credited defendant’s trip-and-discharge account. But the jury did not, and the appellate court deferred to that credibility choice.

Several considerations drove the affirmation on weight:

  • Proven dishonesty: defendant admitted he lied to the dispatcher and police about being “sound asleep,” which the jury could treat as undermining his broader narrative.
  • Internal inconsistencies: the court highlighted contradictions about the gun’s angle, seeing the slug hit the ground, and perceiving no distress/damage despite the vehicle being near.
  • Objective proof: ballistic/reconstruction evidence and witness testimony about vehicles leaving supported the People’s theory over the defense account.

3. Tampering inferred from missing shells/wadding and evidence of post-event activity

The tampering holding is significant for how it treats absence as evidence when combined with circumstantial indicia of concealment. The People established: two shots were fired; investigators could not find spent shells or wadding in the expected exterior areas; a gun cleaning kit was present; and a neighbor observed small lights moving around the residence before police arrived. From that matrix, the jury could infer defendant anticipated official scrutiny and acted to suppress evidence (Penal Law § 215.40 [2]).

Notably, the court did not require direct proof of cleaning or disposal; it was enough that the constellation of facts permitted a rational inference of intentional concealment.

4. Discovery/Rosario: proportional remedies under CPL 245.80

Applying CPL 245.80 (1) (a), the court framed the inquiry as remedy proportionality to prejudice. Because the wife’s recorded statement was said to be consistent with a written statement already disclosed—and because the court allowed the defense to recall her—the Third Department found no abuse of discretion. For the trooper’s “training certificates,” the court treated entitlement as contingent on expert-opinion status under CPL 245.20 (1) (f), and deemed the issue abandoned given the lack of appellate challenge to the trial court’s non-expert ruling.

5. Bodycam reference to counsel: harmless beyond a reasonable doubt

The court acknowledged the general rule from People v Lentini that eliciting counsel invocation can be prejudicial. Yet it found the single mention here (a name reference), in context, did not meaningfully inject consciousness-of-guilt reasoning into the trial. Given the “overwhelming” proof (ballistics, reconstruction, eyewitnesses, inconsistencies) and the curative instruction, the panel found no reasonable possibility that the brief reference contributed to the convictions.

6. Lesser-included charge request: harmless after conviction and rejection of an included lesser

County Court charged manslaughter in the second degree (Penal Law § 125.15 [1]) but refused criminally negligent homicide (Penal Law § 125.10). The Third Department held the claim foreclosed/harmless because the jury convicted depraved-indifference murder and implicitly rejected manslaughter in the second degree, relying on People v Scott and People v Mannix, and invoking People v McIntosh for harmlessness.

C. Impact

1. Substantive criminal law: depraved indifference in “property-defense” gunfire scenarios

Although Monahan does not announce a new statutory rule, it solidifies a practical precedent in the Third Department: firing toward occupied vehicles that are turning around or departing—especially from an elevated position—can support depraved-indifference murder, even when the shooter claims fear of an “invasion” and claims the fatal discharge was accidental.

The opinion also underscores that the “crowd” concept is not rigidly numerical; it is about known risk to multiple persons and indifference to whether death results.

2. Proof and trial strategy: the power of reconstruction and inconsistency evidence

The case highlights how reconstruction evidence (trajectory/downward entry, vehicle orientation “away from the house”) can decisively undermine self-defense-adjacent narratives. It also illustrates appellate acceptance of using admitted lies (e.g., “sound asleep”) as a credibility lever supporting mens rea findings.

3. Tampering prosecutions: “missing evidence” plus surrounding facts may suffice

Monahan reinforces that tampering can be proven circumstantially: missing shells/wadding, cleaning opportunities, and observed post-incident activity can permit a jury to infer intentional suppression to prevent use in proceedings—without direct eyewitness proof of disposal or alteration.

4. Procedure: calibrated remedies for belated discovery and restrained mistrial review

On CPL Article 245, the decision supports trial-court discretion to cure belated disclosure with targeted remedies (e.g., recalling witnesses) rather than the extreme sanction of reversal. On counsel-reference errors, the court signaled continued reliance on harmless-error doctrine where the reference is brief, not exploited, and the remaining proof is strong.

IV. Complex Concepts Simplified

  • Legal sufficiency vs. weight of the evidence: “Sufficiency” asks whether any rational juror could convict viewing evidence most favorably to the prosecution. “Weight” asks whether the appellate court, acting as a “thirteenth juror,” finds the verdict supported when weighing credibility and competing inferences—while still deferring to the jury’s ability to observe witnesses.
  • Depraved indifference: Not intent to kill, but a moral indifference—acting in a way so dangerous and so unconcerned with whether someone dies that it is treated as highly culpable (e.g., firing toward people with no care who is hit).
  • Recklessness (in this context): The defendant must be aware of a substantial, unjustifiable risk of death and consciously disregard it; it’s more than a mistake—it’s a gross deviation from reasonable conduct.
  • Tampering with physical evidence: It is not limited to shredding documents; it includes hiding, altering, or destroying physical items (shells, wadding, residue, the condition of a firearm) when you believe they will be used in an official proceeding and you intend to prevent that use.
  • Rosario/discovery violations under CPL 245.80: The issue is usually not “automatic reversal,” but whether the trial court imposed a proportionate remedy to cure prejudice (such as letting the defense recall a witness with the newly disclosed material).
  • Harmless error: Even if something improper occurs (like a reference to counsel), the conviction stands if the proof of guilt is overwhelming and there is no reasonable possibility the error affected the verdict.

V. Conclusion

People v Monahan is a fact-driven but consequential affirmation of how New York courts evaluate depraved indifference in firearm cases: firing toward occupied vehicles that are leaving—especially with trajectory evidence showing an elevated, downward shot—can be treated as “akin to shooting into a crowd,” supporting depraved-indifference murder and reckless endangerment. The decision also strengthens the practical evidentiary lesson that tampering can be inferred from missing ballistic debris and indicia of post-incident concealment/cleaning. Procedurally, it reflects a restrained appellate approach: tailored remedies for belated discovery, and harmless-error treatment of brief, unexploited references to counsel amid overwhelming proof.