By JONATHAN BANDLER
THE JOURNAL NEWS
(Original publication: November 29, 2004)

WHITE PLAINS — The son of a reputed Mafia captain stabs a college student to death outside a Yonkers bar. An off-duty police officer fatally shoots a bat-wielding man in Dobbs Ferry. A struggling musician staying with a Mount Vernon family bludgeons one of his hosts to death because the victim was disrespectful.

Westchester prosecutors argued the killings were either intentional murders or murders evincing a depraved indifference to human life, and got juries to settle on the latter and deliver convictions carrying life sentences.

Now, a state Court of Appeals decision tossing out a Long Island murder conviction and setting a defendant free is forcing prosecutors in New York to more accurately pick between the two alternative theories of murder, and risk imperiling a homicide case if they choose wrong.

"Prosecutors have been on notice for several years of the riskiness of charging 'depraved indifference' murder. They've had a warning but they haven't really heeded that warning," said Bennett Gershman, a professor at Pace Law School. "Payne (the Long Island case) illustrates the problem of prosecutors overcharging. The charging power they have is the most awesome power there is in the criminal justice system. They've ... (charged both) to cover themselves, in a self-serving way, but now they have to be careful."

Last month, Kenneth Payne walked out of an upstate prison a free man after his 2000 murder conviction was overturned by the Court of Appeals, the state's highest court.

Payne had been convicted of committing the first slaying in Shelter Island's 350-year history. He was accused of firing a single shotgun blast into the stomach of his neighbor in 1998.

The jury acquitted him of intentional murder but found him guilty of depraved-indifference murder. The Court of Appeals ruled that Payne had clearly intended to kill but that the point-blank shooting did not meet the legal standard of depravity and the jury should never have been allowed to consider both second-degree murder charges.

"This court's recent holdings ... have made clear that depraved-indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York," the court ruled, adding later that "a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder."

It was a further narrowing of the cases for which a depraved-indifference murder charge is appropriate, with the court citing such classic examples as killing a bystander in a gunbattle, firing shots into a crowd, leaving a bomb in a public place, opening the lion's cage at the zoo.

Defense lawyers hailed the decision as a leveling of the playing field, while prosecutors complained that it should ultimately be up to a jury to determine a killer's state of mind.

"This is a good development. ... It's going to guarantee people fair trials," said Steven J. Pittari, head of the Legal Aid Society of Westchester. "For quite a number of years, D.A.s not just here but throughout the state have been throwing (the depraved-murder charge) in as a catch-all to try to get people convicted where they couldn't prove intent (to kill)."

But Westchester District Attorney Jeanine Pirro's top aide said prosecutors have to be able to charge depraved murder in anticipation of certain defense theories.

"If a defendant engages in an act that is so inexorably going to cause the death of another person, should there not be a murder charge regardless of the purpose of that conduct?" said Chief Assistant District Attorney Richard Weill. "If the defendant is in a bind (as a result of both murder charges), it's because his or her conduct violated more than one theory of the murder statute."

Both depraved and intentional murder are charged as the same level of felony, second-degree murder, and both carry the same sentence, a minimum of 15 years in state prison and a maximum of 25 years to life. Defense lawyers hoping to spare obviously guilty clients of a life sentence push for a manslaughter conviction by arguing recklessness or an intention only to injure — but frequently face a double-barreled murder charge that juries often confuse.

"I was guilty of that as a prosecutor, offering both and letting the jury decide," said defense lawyer Geoffrey Orlando, a top Westchester prosecutor in the 1970s. "Juries love to compromise and, when they came back with (depraved murder), they thought they were compromising. They would think they were giving the defendant a break of some kind, when in fact it was no break at all."

The legal distinctions between depraved murder and reckless manslaughter also have been blurred, so much that U.S. District Judge Charles Brieant has faulted New York's depraved-murder statute as unconstitutionally vague.

Juries must determine whether a defendant disregarded a grave risk of death, compared with a substantial risk required for reckless manslaughter, a standard Brieant has called a "distinction without a difference."

He has found that defendants can face significantly harsher sentences — at least 15 years to life compared with a maximum of 15 years — for essentially the same conduct, but the 2nd U.S. Circuit Court of Appeals has reversed him and upheld a depraved-murder conviction that he had overturned.

Legal experts and lawyers agree that the Payne decision cannot automatically be applied retroactively to decades of murder convictions, but cases still in the appellate pipeline could pose problems for prosecutors. And defense lawyers who have exhausted their state appeals are expected to use the ruling to back up federal habeas corpus challenges to the constitutionality of the convictions.

Albany Law School professor Vincent Bonventre suggested the state Legislature should "go back to the drawing board" on depraved murder. He and Pittari said the Payne ruling was particularly significant because its author, Justice Albert Rosenblatt, is a former Dutchess County district attorney who was tapped for the court because Gov. George Pataki expected him to be a "law and order" conservative.

"The Payne decision puts a final nail in the coffin of most (depraved-murder) prosecutions," Bonventre said. "It's just an awful law; it's terrible. It was supposed to be reserved for cases of people who are so sick, so inhumane, that they are just as bad as intentional murderers." Instead, he said, it has become a fallback position for prosecutors and indistinguishable from reckless manslaughter.

A day after the Payne ruling, Westchester prosecutors knew they had a problem with at least one case. Jury selection was set to begin in the retrial of Deshawn Kenner, who killed one man and injured another in 2000 when he emerged from a Yonkers strip club and opened fire.

Kenner was acquitted of intentional murder and convicted of depraved-indifference murder in a trial, and sentenced to 40 years to life in prison. But an appellate court threw out the conviction this year because of errors by the trial judge.

Unable to proceed on the intentional charge because of the earlier acquittal, and aware that the Payne decision made a depraved charge problematic, the District Attorney's Office offered Kenner a manslaughter plea and he accepted it, agreeing to serve an additional 20 years in prison.

Weill said the District Attorney's Office has reviewed other pending cases that include depraved-murder charges and does not think any require dismissal.

But the circumstances cited by the Court of Appeals suggest that nearly a dozen depraved-murder convictions in Westchester over the past several years were more likely intentional killings. Among those were two of the most high-profile murder cases prosecuted by Pirro's office during that time, the racially charged 1996 Venice Deli slaying in Dobbs Ferry and the mob-tinged stabbing of Louis Balancio outside the Strike Zone bar in Yonkers, a 1994 killing that went unsolved for six years as dozens of witnesses refused to cooperate.

Off-duty New York City Police Officer Richard DiGuglielmo maintained he was protecting his father when he shot Charles Campbell three times outside the Dobbs Ferry deli. Campbell had grabbed a baseball bat from his car after DiGuglielmo's father accosted him about parking his car there while he got pizza across the street. But the jury found that Campbell may have been retreating and convicted the younger DiGuglielmo of depraved murder. The former officer, serving 20 years to life upstate, has exhausted his federal appeals, but his lawyers are reviewing options in the wake of the Payne decision.

"This was either intentional murder, and the jury correctly acquitted of that, or justifiable homicide," said DiGuglielmo's appellate lawyer, Andrew Schapiro. "The only thing it definitely was not was recklessly indifferent murder."

Anthony DiSimone, a member of the Tanglewood Boys gang and son of a captain in the Lucchese crime family, was convicted of depraved murder for the Balancio killing. DiSimone's state appeals are up, but his lawyers are challenging the conviction before Brieant on several grounds, including the unconstitutionality of the depraved-murder charge. The federal appeal cites the prosecution's own insistence that the stabbing showed an intent to kill.

Prosecutors contend that, in cases in which the defense argued recklessness, a depraved-murder conviction should stand. But Pittari said the Payne decision makes clear that it is not depraved murder simply because someone brings a weapon to a contentious situation or handles the weapon recklessly.

That should be grounds for reversing last year's conviction of Andrew Lyons, he suggested. Lyons claimed he did not fire intentionally when he carried a gun up to a car driven by a man who had beaten him up and the gun discharged, killing the man.

Pittari said he hoped that the Payne decision would offer some relief for Kenny Scott, a Legal Aid client whose state appeal was denied this year. Scott bludgeoned Roy Fraser Jr. eight times with a hammer in Fraser's Mount Vernon home. He was convicted of depraved murder, but the Court of Appeals has suggested that the more times a victim is shot, stabbed or beaten, the more intentional the killing.

Reach Jonathan Bandler at jbandler@thejournalnews.com or 914-694-3520.