PEOPLE v. REGISTER

SIMONS, J.

Defendant appeals from an order of the Appellate Division which affirmed a judgment entered after a jury trial convicting him of murder in the second degree (Penal Law, § 125.25, subd 2 [depraved mind murder]) and two counts of assault in the first degree (Penal Law, § 120.10, subd 1). The charges arose from a barroom incident in which defendant shot and killed one man and seriously injured two others. He alleges that the evidence was insufficient to support the murder conviction and that the trial court erred in refusing to instruct the jury that it could consider intoxication evidence to negate an element of the crime of depraved mind murder. He also assigns error in rulings during the examination and cross-examination of his expert witness, claiming that the court limited his right to develop psychiatric evidence on the effect of alcohol on his conduct.

There should be an affirmance. The evidence supports the conviction and the court's instructions were correct. Moreover, the court did not abuse its discretion in its rulings during the examination of defendant's expert (cf. People v Cronin, 60 N.Y.2d 430).

The shootings occurred about 12:30 A.M. on January 15, 1977 in a crowded barroom in downtown Rochester. The evidence established that defendant and a friend, Duval, had been drinking heavily that day celebrating the fact that Duval, through an administrative mixup, would not have to spend the weekend in jail. Sometime between 7:00 P.M. and 8:00 P.M., the two men left home for the bar. Defendant took a loaded pistol with him and shortly after they arrived at the bar, he produced it when he got into an argument with another patron over money owed him. Apparently the dispute ended without incident and defendant continued his drinking. After midnight another argument developed, this time between Duval and Willie Mitchell. Defendant took out the gun again, shot at Mitchell but mistakenly injured Lawrence Evans who was trying to stop the fight. He then stepped forward and shot Mitchell in the stomach from close range. At that, the 40 or 50 patrons in the bar started for the doors. Some of the bystanders tried to remove Mitchell to a hospital and while they were doing so, the decedent, Marvin Lindsey, walked by defendant. Lindsey was apparently a friend or acquaintance of defendant although that was the first time he had seen him that night. For no explained reason, defendant turned and fired his gun killing Lindsey.

Defendant did not contest the shootings. In defense, his counsel elicited evidence during the prosecution's case of defendant's considerable drinking that evening and he called as his only witness a forensic psychiatrist who testified on the debilitating effects of consuming alcoholic beverages. The jury acquitted defendant of intentional murder but convicted him of depraved mind murder and the two assault counts.

The murder conviction must be supported by evidence that defendant "[u]nder circumstances evincing a depraved indifference to human life * * * recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and thereby cause[d] the death of another person" (Penal Law, § 125.25, subd 2). A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk (Penal Law, § 15.05, subd 3), but to bring defendant's conduct within the murder statute, the People were required to establish also that defendant's act was imminently dangerous and presented a very high risk of death to others and that it was committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind (see People v Poplis, 30 N.Y.2d 85, 88; People v Jernatowski, 238 N.Y. 188; Darry v People, 10 N.Y. 120, 148; see, generally, LaFave and Scott, Criminal Law, Depraved-Heart Murder, § 70, pp 541-545; Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417, 447). The crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct.

Whether the risk of defendant's conduct was of the type condemned by the Penal Law was to be decided by the trier of the facts aided by appropriate instructions ( People v Licitra, 47 N.Y.2d 554, citing People v Haney, 30 N.Y.2d 328; People v Angelo, 246 N.Y. 451). The jury's proper role, as the Appellate Division found, was to make a qualitative judgment whether defendant's act was of such gravity that it placed the crime upon the same level as the taking of life by premeditated design ( 90 A.D.2d 972, 973; see, also, People v Le Grand, 61 A.D.2d 815, cert den 439 U.S. 835; ALI Model Penal Code, § 210.2, subd [1], par [b], comment, at pp 21-22 [1980]). It had to determine from the evidence if defendant's conduct, though reckless, was equal in blameworthiness to intentional murder.

The evidence in the record supports the verdict. Defendant's awareness of and indifference to the attendant risks was established by evidence that he entered a crowded bar with a loaded gun, he said that he was "going to kill somebody tonight", or similar words, several times, and he had brought the gun out in the bar once before during the evening only to be told to put it away. Ultimately, he fired the gun three times in the "packed" barroom, conduct which presented a grave risk of death and did in fact result in the death of Marvin Lindsey. His conduct was well within that defined by the statute (see Penal Law, § 125.25, subd 2; § 15.05; People v Jernatowski, 238 N.Y. 188, supra; Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 125.25, p 399; LaFave and Scott, Criminal Law, Depraved-Heart Murder, § 70, p 543).

At the conclusion of the evidence and after the charge, defendant requested the court to instruct the jury on the effect of intoxication (see Penal Law, § 15.25). The court complied with the request when discussing the intentional murder and assault counts, but it refused to charge the jury that it could consider defendant's intoxication in determining whether he acted "[u]nder circumstances evincing a depraved indifference to human life" in causing the death of Marvin Lindsey. The court held that the mens rea required for depraved mind murder is recklessness and that subdivision 3 of section 15.05 of the Penal Law precludes evidence of intoxication in defense of reckless crimes because it provides that "[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly". That ruling is assigned as error by defendant. He contends that depraved mind murder contains a different or additional element of mental culpability, namely "circumstances evincing a depraved indifference to human life", which elevates defendant's conduct from manslaughter to murder and that this additional element may be negatived by evidence of intoxication (see Penal Law, § 15.25).

The Penal Law does not expressly define the term "element". However, it does set forth what the "elements" of an offense are and identifies them, as does the common law, as a culpable mental state ( mens rea) and a voluntary act ( actus reus) (Penal Law, § 15.10). Both are required in all but the strict liability offenses ( id.). Consistent with that provision, the statutory definition of depraved mind murder includes both a mental element ("recklessly") and a voluntary act ("engaging in conduct which creates a grave risk of death to another person") (see Penal Law, § 125.25, subd 2; §§ 15.05, 15.10). Recklessness refers to defendant's conscious disregard of a substantial risk (Penal Law, § 15.05, subd 3) and the act proscribed, the risk creating conduct, is defined by the degree of danger presented. Depraved mind murder resembles manslaughter in the second degree (a reckless killing which includes the requirement that defendant disregard a substantial risk [Penal Law, § 125.15, subd 1; § 15.05, subd 3]), but the depraved mind murder statute requires in addition not only that the conduct which results in death present a grave risk of death but that it also occur "[u]nder circumstances evincing a depraved indifference to human life." This additional requirement refers to neither the mens rea nor the actus reus. If it states an 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 — objective circumstances which are not subject to being negatived by evidence of defendant's intoxication.

The view is supported by an analysis of the statutory development of the crime. Because of an inability to quantify homicidal risks in precise terms, the Legislature structured the degree of risk which must be present in nonintentional killings by providing that in a depraved mind murder the actor's conduct must present a grave risk of death whereas in manslaughter it presents the lesser substantial risk of death (see, also, Penal Law, § 15.05, subd 4 [criminal negligence, a failure to perceive a substantial risk]). The phrase "[u]nder circumstances evincing a depraved indifference to human life" refers to the wantonness of defendant's conduct and converts the substantial risk present in manslaughter into a very substantial risk present in murder (see LaFave and Scott, Criminal Law, § 70, p 542). The predecessor statute referred to "a depraved mind, regardless of human life" (Penal Law, § 1044, subd 2, cited in People v Jernatowski, 238 N.Y. 188, 190, supra) and the older cases, in attempting to explicate this factor, speak of a "depraved heart devoid of social duty and fatally bent on mischief" (see LaFave and Scott, Criminal Law, § 70, p 542). Such phrases, suggesting malice aforethought, have provoked statements that malice or intent is inferred in depraved mind murder (see, e.g., Darry v People, 10 N.Y. 120, supra). However, the focus of the offense is not upon the subjective intent of the defendant, as it is with intentional murder (Penal Law, § 125.25, subd 1), but rather upon an objective assessment of the degree of risk presented by defendant's reckless conduct (see, e.g., People v Jernatowski, 238 N.Y. 188, supra [firing a bullet into a room defendant knew contained several people]; People v Poplis, 30 N.Y.2d 85, supra [defendant continually beat 3 1/2-year-old infant over five-day period]; see, also, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 125.25 [depraved mind murder committed when one shoots into a crowd, places a time bomb in a public place or opens the door of a lion's cage in a zoo]; 8 Zett, N Y Crim Prac, par 69.2 [2] [a], [c], p 69-18).

Inferred intent is a legal fiction much like the transferred intent concept of felony murder. It is perhaps indicative of the analytical problems involved in these two traditional crimes, depraved mind murder and felony murder, that they were defined in the same subdivision of the old statute (former Penal Law, § 1044, subd 2).

The present statute is derived from this conceptual base but it contains important differences. Thus, whereas the former penal statutes defined depraved mind murder by referring to defendant's conduct, i.e., "[w]hen perpetrated by any act imminently dangerous to others", etc., defined mens rea "as a depraved mind" and contained no references to recklessness (see Rev Stat of N Y [1829], part IV, ch I, tit I, § 5, subd 2; former Penal Law, § 1044, subd 2), the present statute defines the crime by reference to the circumstances under which it occurs and expressly states that recklessness is the element of mental culpability required. The concept of depraved indifference was retained in the new statute not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder (see People v Le Grand, 61 A.D.2d 815, cert den 439 U.S. 835, supra).

In People v Poplis ( 30 N.Y.2d 85, supra), we construed the present statute and pointed out that depraved mind murder is a crime involving recklessness plus aggravating circumstances. While not explicitly drawing the distinction between the depraved mind mens rea of the former statute and the "circumstances" clause which qualifies the element of recklessness in the new statute, Judge BERGAN writing for a unanimous court noted that the new statute eliminated the "psychiatrically complicating" considerations found in the former statute (at p 88) and that it was a distinct improvement over the former statutes which spoke in terms of the operation of defendant's mind. Our holding that depraved mind murder is distinguishable from manslaughter, not by the mental element involved but by the objective circumstances in which the act occurs, finds sound support in that decision.

Further evidence that "recklessness" is the mens rea, and the only mens rea, of the crime is to be found in other sections of article 15. Section 15.05, which was intended to "limit and crystalize" the culpable mental states involved in the criminal law (see Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 15.05), includes recklessness as one of those culpable mental states but it does not list "depraved indifference". Moreover, subdivision 1 of section 15.15 provides that when an offense requires a particular culpable mental state, such mental state is designated by use of the terms found in section 15.05. When only one culpable mental state appears in a statute defining an offense, section 15.15 directs that the mental state is presumed to apply to every element of the offense. The only culpable mental state found in section 125.25 which defines depraved mind murder is recklessness; it is defined in subdivision 3 of section 15.05 (which prohibits evidence of intoxication to negative it) and the statute prescribes that it apply to every element of the offense.

The dissenter's concern that this decision will result in wholesale depraved mind murder prosecutions for what are essentially intentional murders is unwarranted. Our statutes have included a crime of depraved mind murder in its various forms and definitions for over 150 years. Its nature is "well understood" (see People v Poplis, 30 N.Y.2d 85, 88, supra), and the unusual settings appropriate to it have been stated frequently (see citations, supra, at p 277). It is not and never has been considered as a substitute for intentional homicide. That intoxication evidence might under some unusual circumstances negative the intent of an intentional homicide although by virtue of the statute it would have no similar effect on the same act charged as done recklessly in a depraved mind murder should not alter the implementation of the statute. A similar alleged paradox exists presently for an act done under a mistaken belief of fact (see Penal Law, § 15.20, subd 1, par [a]).

In sum, the statutory requirement that the homicide result from conduct evincing a depraved indifference to human life is a legislative attempt to qualitatively measure egregiously reckless conduct and to differentiate it from manslaughter. It does not create a new and different mens rea, undefined in the Penal Law, or a voluntary act which can be negatived by evidence of intoxication. If the objective circumstances under which the crime is committed constitute an element of it, they do so only in the sense that carrying a gun or acting in concert with another are elements of the crime of robbery or that the theft of more than $250 is an element of grand larceny. It is an element which elevates the severity of the offense but it is not an element subject to being negatived by evidence of intoxication as may intent or the physical capacity to act.

The dissent suggests that defendant's knowledge that his conduct will "with substantial certainty * * * result in the death of another" is part of the definition of depraved mind murder (dissent, at p 285). That language is not found in our statute (see Penal Law, § 125.25, subd 2). The quotation is based upon a legislative history from an unrelated English Law Commission Report which is quoted in an article of Professor Gegan dealing principally with People v Kibbe ( 35 N.Y.2d 407) (Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417).

In conclusion, it is worth noting that at common law intoxication was not a defense or excuse to criminal charges ( People v Koerber, 244 N.Y. 147, 151; People v Leonardi, 143 N.Y. 360; People v Rogers, 18 N.Y. 9), but was viewed instead as an aggravating circumstance which heightened moral culpability (see People v Koerber, supra, at pp 151-152, citing 8 Holdsworth's History of English Law, pp 442-443). The common-law courts viewed the decision to drink to excess, with its attendant risks to self and others, as an independent culpable act. Despite widespread acceptance of this rule, legal authorities began to recognize that the debilitating impact of voluntarily consuming excessive amounts of alcohol warranted the admission of evidence of intoxication in some cases, particularly to negative proof that defendant possessed the physical capacity to commit the crime, by striking a blow, for example (see ALI, Model Penal Code, Commentaries to Tentative Draft No. 9, May 8, 1959, p 4). In New York the Legislature further modified the common-law rule by permitting the defendant to introduce evidence of intoxication to aid the jury in determining his motive or intent in committing an act (see former Penal Code [1881], § 22; People v Mills, 98 N.Y. 176).

Notwithstanding this relaxation of the prohibition against use of intoxication evidence, the present statute when enacted in 1967 continued to foreclose the use of intoxication evidence in cases involving recklessness. The rationale is readily apparent: the element of recklessness itself — defined as conscious disregard of a substantial risk — encompasses the risks created by defendant's conduct in getting drunk.

Ultimately, the only intended purpose in permitting the jury to consider intoxication in a reckless crime is to negate defendant's awareness and disregard of the risk. It is precisely that point — the inconsistency of permitting reckless and otherwise aggravating conduct to negate an aspect of the offense — that persuades us that intoxication evidence should be excluded whenever recklessness is an element of the offense (see, generally, ALI Model Penal Code [Proposed Official Draft, 1962], § 2.08, subd [2]). In utilitarian terms, the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk.

Accordingly, the order of the Appellate Division should be affirmed.

JASEN, J. (dissenting).

The majority holds that the element of "circumstances evincing a depraved indifference to human life" set forth in subdivision 2 of section 125.25 of the Penal Law is not part of the mens rea of murder in the second degree and that evidence of intoxication is, therefore, inadmissible to negate that element. Since I believe the Legislature intended that a defendant's alleged intoxication could be used to negate that element of the crime, I respectfully dissent.

Subdivision 2 of section 125.25 of the Penal Law provides that a person is guilty of murder in the second degree when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person". This statute evolved without substantial change from the Revised Statutes of 1829 which, inter alia, characterized a homicide as murder "[w]hen perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual". (Rev Stat of N Y [1829], part IV, ch I, tit I, § 5, subd 2.) While this statutory language was changed slightly in 1967, the new statute was intended to be "substantially a restatement" of the former provision. (Temporary State Comm on Revision of Penal Law and Criminal Code, Proposed N Y Penal Law, § 339 [1964]; Gilbert Criminal Code and Penal Law [1967], § 130.25, p 1C-63; see, also, Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417, 437.) The majority's unexplained refusal to recognize this crucial piece of legislative history represents the fundamental flaw in its reasoning. As the majority concedes, the predecessor statutes to subdivision 2 of section 125.25 of the Penal Law defined the requisite mens rea "as a depraved mind" (majority opn, at p 277). Thus, unless a significant change was intended by the Legislature in enacting subdivision 2 of section 125.25, this statute must be similarly construed as characterizing "depraved indifference" as a mens rea. That no such change was intended was made abundantly clear by the State commission in declaring that the new statute was intended to be "substantially a restatement" of the former. ( Id.) Nevertheless, the majority disregards entirely the legislative intent behind the statute and states, without any authority in support thereof, that "[t]he concept of depraved indifference was retained in the new statute not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder". (At pp 277-278.) Inasmuch as the cases construing this statute have consistently held that "depraved mind" and "depraved indifference" connote a culpable mental state, I see no reason why the majority should reach a different result now.

In Darry v People ( 10 N.Y. 120, 148), our court held that the statute was designed "to provide for that class of cases, and no others, where the acts resulting in death are calculated to put the lives of [many] persons in jeopardy, without being aimed at any one in particular, and are perpetrated with a full consciousness of the probable consequences." (Emphasis supplied.) Thus, in construing the 1854 version of the statute, a version which included the element "depraved mind" but not "recklessly", as requiring proof that the accused was aware of and consciously disregarded the probable consequences of his act, the court viewed the "depraved mind" element as a culpable mental state. (See, also, People v Darragh, 141 App. Div. 408, 413-414, affd 203 N.Y. 527.) Indeed, the plain wording of the statute compelled that conclusion. Similarly, in People v Jernatowski ( 238 N.Y. 188, 191), this court held that where a person is "aware that there are human beings in a house [and] fires several shots into it, knowing that some one may be killed and with reckless indifference whether he is or not, he ought not to be relieved from the natural consequences of his act". (Emphasis supplied.) Recognizing that the depraved mind murder statute required proof of consciousness of the risks of defendant's conduct and a disregard of same, the court placed great emphasis on the fact that defendant was fully aware of the consequences of his act. It seems clear, therefore, that the defendant in the case before us should be treated similarly and be allowed to show that as a result of his intoxication he was not aware of what he was doing and the risks involved and was not, therefore, competent to consciously disregard those risks. If such proof were offered and believed, defendant could be convicted only of manslaughter.

This conclusion finds strong support in a recent decision of this court where it was reasoned that, under the present version of the statute, "circumstances evincing a depraved indifference to human life" plus "recklessness", constitutes conduct of "graver culpability" which involves something more serious than mere recklessness. ( People v Poplis, 30 N.Y.2d 85, 88.) Although the majority chooses to ignore this plain language, by speaking in terms such as "graver culpability" this court made it abundantly clear that "depraved indifference" was to be construed as a mens rea involving a state of mind more vicious than recklessness but less so than intent. Inasmuch as proof of intoxication is admissible "whenever it is relevant to negative an element of the crime charged" (Penal Law, § 15.25), it should have been admitted here to show that defendant did not possess a state of mind sufficiently culpable to warrant a conviction for murder rather than manslaughter.

While the majority correctly states that "[t]he crime differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant's conduct" (at p 274), can there be any doubt that to disregard the risks attending his conduct defendant must have at least been aware of those risks? As stated by Arnold D. Hechtman, Counsel to the Commission on Revision of the Penal Law and Criminal Code, the fatal conduct must be performed with "a depraved kind of wantonness." (Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 125.25, p 399.) Wantonness, a term used by the majority in defining what a defendant's conduct must amount to before a conviction for depraved mind murder can be sustained (at p 277), is commonly defined as requiring a conscious doing of some act with knowledge of existing conditions and an awareness of the risks involved. Thus, it should be clear beyond cavil that "depraved indifference" was intended by the Legislature to constitute a culpable state of mind which could be negated by proof that the actor was so intoxicated he was not aware of existing conditions or the risks inherent in his conduct.

A leading lexicon defines "wantonness" as: "Conscious doing of some act or the omission of some duty with knowledge of existing conditions and consciousness that, from the act or omission, injury will likely result to another. Conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure. A reckless or intentional disregard of the property, rights, or safety of others, implying, actively, a willingness to injure and disregard of the consequences to others, and, passively, more than mere negligence, that is, a conscious and intentional disregard of duty." (Citations omitted.) (Black's Law Dictionary [5th ed], p 1419.)

The construction which I would give the depraved mind murder statute is not only consistent with the Legislature's intent, the history of the statute and precedent of this court, but is also in line with the basic underpinnings of our system of criminal justice. The rule announced by the majority today effectively eviscerates the distinction between manslaughter in the second degree (Penal Law, § 125.15, subd 1) and murder in the second degree (Penal Law, § 125.25, subd 2) with respect to the accused's state of mind. The majority holds that mere recklessness is a sufficient mens rea under the depraved mind murder statute if the objective circumstances surrounding the killing "presented a grave risk of death and did in fact result in the death" of another. (At p 275.)

Historically, our criminal law is based upon a theory of "punishing the vicious will." (Pound, Introduction to Sayre, Cases on Criminal Law [1927], p XXXVI.) It is a deep-rooted part of our jurisprudence that, in the ordinary case, only those offenders who consciously choose to do evil rather than good will be punished. ( Morissette v United States, 342 U.S. 246, 250-251.) Under the majority's rule, however, a person who possessed only a reckless state of mind when he caused the death of another could be convicted of depraved mind murder (Penal Law, § 125.25, subd 2) and sentenced to a term of 15 years to life imprisonment simply because objective circumstances surrounding the killing presented a "grave risk" of death even though the actor, due to intoxication, was unaware of those circumstances and could not appreciate the risks. The majority would also hold that another person who is fully aware of a "substantial and unjustifiable risk" and consciously disregards that risk can only be found guilty of manslaughter in the second degree and sentenced to as little as one and one-half years in jail. (Penal Law, § 125.15, subd 1; § 15.05, subd 3.) While there may be a technical distinction between a "grave" risk and a "substantial" one, the only real difference is about 15 years in prison. (See Gegan, 49 St John's L Rev, op. cit., at p 442.) To accept this distinction as justification for the disparate penalties which the respective crimes carry defies basic principles of fairness and logic. I simply cannot agree that the Legislature intended that convictions for murder as opposed to manslaughter would turn upon the nature of the objective surrounding circumstances regardless of whether or not the accused was aware of those circumstances or could appreciate the consequences of his conduct.

While I would agree with the majority that the Legislature could constitutionally exclude intoxication as a factor which negates the element of "depraved indifference" just as it has with respect to the element of "recklessness" (see Penal Law, § 15.05, subd 3), the simple fact is that the Legislature has not done so; indeed section 15.25 of the Penal Law has done just the opposite.

In my view, the Legislature purposely distinguished between reckless manslaughter and depraved mind murder, intending that depraved indifference plus recklessness would connote a mens rea more culpable than recklessness alone and nearly as culpable as intent. The differences between the mental states set forth in the reckless manslaughter, depraved mind murder and intentional murder statutes are easily delineated, although somewhat difficult to apply. A person acts recklessly in causing the death of another when he is aware of and consciously disregards a substantial and unjustifiable risk. (Penal Law, § 15.05, subd 3.) A person intentionally kills another when his "conscious objective" is to cause the death of the victim. (Penal Law, § 15.05, subd 1.) A person acts with depraved indifference, however, when he engages in conduct whereby he does not intend to kill but is so indifferent to the consequences, which he knows with substantial certainty will result in the death of another, as to be willing to kill. (See Gegan, 49 St John's L Rev, at p 446, citing English Law Commission Report [Gr Brit, 1966], Imputed Criminal Intent: Director of Public Prosecutions v Smith, par 17.). It is at this point that reckless homicide becomes knowing homicide and the killing differs so little from an intentional killing that parity of punishment is required. (Gegan, 49 St John's L Rev, op. cit., at p 447.) This is so not because the surrounding circumstances happened to create a "grave" as opposed to a "substantial" risk, but because the accused has acted with greater culpability and a wickedness akin to that of one whose conscious objective is to kill.

As the majority correctly points out, the construction I would give to subdivision 2 of section 125.25 "is not found in our statute". (At p 279, n 2.) I note parenthetically that neither is the majority's. Moreover, the construction I urge is consistent with the legislative history of the statute, the cases construing it and basic principles of criminal justice. That the English Law Commission, whose criticism of reasoning similar to the majority's (see Director of Public Prosecutions v Smith [1961], AC 290, 3 WLR 546) resulted in the enactment of the English Criminal Justice Act of 1967 overturning the Smith decision, agrees with my view, does not detract from the correctness of my position.
I would also note that the failure to specifically define "depraved indifference" in subdivision 1 of section 15.15 is irrelevant, for that statute, by its own terms, was not intended to be an all inclusive list of the mental states to be found in the Penal Law. The majority's reliance on said omission is, therefore, misplaced.

By this approach, a person who acts without an awareness of the risks involved, due to intoxication or otherwise, will be punished for manslaughter, while a person who acts in a way which he knows is substantially certain to cause death, although not intending to kill, will be treated the same as a person who intentionally kills. It seems to me that this is the far more reasonable approach and the one intended by the Legislature.

Additionally, I note that the majority's rationale appears to be inconsistent with the over-all legislative scheme manifest in article 125 of the Penal Law. In enacting subdivision 3 of section 15.05 of the Penal Law, the Legislature declared that a reckless killer should not be permitted to hide behind a defense of intoxication. However, recognizing that a reckless killer, whether intoxicated or not, should not be punished as severely as a person who intentionally takes the life of another, the lawmakers categorized reckless homicide as manslaughter in the second degree (a class C felony), rather than murder in the second degree (a class A-I felony). It is, therefore, anomalous to say, as the majority does, that the Legislature intended that an individual who had no awareness of the seriousness of his conduct or the circumstances surrounding his actions due to intoxication and had no intent to kill should be punished as severely as the intentional killer. Furthermore, as a result of the majority's interpretation of the statute, prosecutors will be able to obtain murder convictions simply by proving that the defendant acted recklessly in killing another. This is so because the simple fact that the defendant's conduct resulted in the victim's death will, with 20/20 hindsight, be proof enough to a jury that the circumstances existing at the time and place of the killing presented a "grave risk" of death and that the defendant, therefore, acted with depraved indifference to human life. This result is clearly at odds with the legislative scheme set forth in article 125 of the Penal Law.

It is curious that the majority would opine that the depraved mind murder statute "is not and never has been considered as a substitute for intentional homicide" and that it would be an unusual case where intoxication would "negative the intent [element] of an intentional homicide [when] it would have no similar effect on the same act charged as done recklessly in a depraved mind murder" (at p 279). Indeed, this is precisely what happened in this case where defendant was acquitted of intentional murder yet the prosecutor was still able to obtain a murder conviction from the jury under the depraved mind murder statute.

Further proof of this fact is manifest in a comparison of the three subdivisions of section 125.25 of the Penal Law. Persons accused of intentionally killing another, as well as those accused of felony murder, are permitted to mitigate their crimes by establishing certain affirmative defenses. (Penal Law, § 125.25, subds 1, 3.) However, under the majority's construction of subdivision 2, a person charged with depraved mind murder who merely acted recklessly in causing the death of another is precluded from attempting to mitigate his crime to manslaughter.

Finally, with respect to the majority's statement that "the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk" (at pp 280-281), I would only note that although this may be an accurate representation of what the majority believes the law should be, the Legislature has decided otherwise (see Penal Law, § 15.25) and it is this court's responsibility to construe the statute accordingly.

Inasmuch as the legislative history of subdivision 2 of section 125.25 of the Penal Law, prior precedent of this court and basic notions of justice make clear that the element of "depraved indifference" should be construed as a mental state more culpable than recklessness, evidence of defendant's intoxication should have been admitted, pursuant to section 15.25 of the Penal Law, to negate that element of the offense.

Accordingly, I would reverse the conviction and order a new trial.