American Bar Association
Media Alerts
Media Alerts - Gutierrez v. Smith - Second Circuit
Decrease font size
Increase font size
December 11, 2012
  Gutierrez v. Smith - Second Circuit
Headline: Second Circuit Affirms Depraved Indifference Murder Conviction in One-on-One Stabbing Case under New York State Law

Area of Law: Criminal

Issue(s) Presented: Whether there was sufficient evidence to support the jury's finding that the defendant's one-on-one stabbing of the victim constituted depraved indifference murder under New York law.

Brief Summary:
Defendant-appellant Omar Gutierrez was convicted of depraved indifference murder under New York Penal Law § 125.25(2) for stabbing and killing the victim, John Villaplana, outside a bar in Montauk, Long Island. As an initial matter, the Second Circuit disagreed that Gutierrez's appeal was procedurally barred by his failed to preserve his right to appeal, excusing his trial counsel's failure to object to the legal sufficiency of his depraved indifference murder conviction at trial court because it "would have been futile" under the controlling law at the time. Nevertheless, the Second Circuit went on to affirm Gutierrez's depraved indifference murder conviction, holding that, under the specific facts of this case, the jury could reasonably have found that, "although the fatal stabbing was one-on-one and face-to-face, . . . Gutierrez's conduct was not intentional, but was reckless and took place in circumstances evincing a depraved indifference to human life."

To read the full opinion, visit:
">http://www.ca2.uscourt.../de.....9/1/hilite/



Extended Summary (if applicable):

In 2001, defendant-appellant Omar Gutierrez was tried and convicted of depraved indifference murder under New York Penal Law § 125.25(2) for stabbing and killing victim John Villaplana outside a bar in Montauk, Long Island. The killing occurred after a fight between two groups of patrons at Rick's Crabby Cowboy Cafe in Montauk, Long Island, escalated and continued outside the bar. During the continuing brawl, Gutierrez pulled out a knife, threatening several men and "accidentally" stabbing and injuring, but not killing, another victim who ran towards him. Gutierrez and a few others then followed Villaplana to a nearby driveway where, the evidence indicated, Gutierrez stabbed him once in the chest. Villaplana was still standing when Gutierrez left the scene and Gutierrez did not know whether the victim was dead or alive when he was later questioned by the police.

After the Appellate Division affirmed Gutierrez's conviction and the New York Court of Appeals refused his application to appeal to that court in 2005, Gutierrez's conviction became final. He filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of New York on the grounds that the evidence presented at trial was insufficient to support his conviction. The District Court denied the petition, finding that Gutierrez's appeal was procedurally barred due to his trial counsel's failure to record a sufficiency objection in the trial court, and Gutierrez sought review in the Second Circuit.

As an initial matter, the Second Circuit disagreed that Gutierrez's appeal was procedurally barred, excusing his trial counsel's failure to preserve a sufficiency objection because "a fundamental shift in New York's interpretation of its depraved indifference murder statute between the time of Gutierrez's trial in 2001 and the time his conviction became final in 2005" created a basis for the sufficiency objection as of 2005 and "was not reasonably available to counsel at the time of trial." Specifically, the court compared the law on depraved indifference murder as governed by People v. Register at the time of the 2001 trial, which minimized the importance of the defendant's subjective intent, to subsequent rulings that differentiated intentional and depraved indifference murder by requiring proof of defendant's recklessness - as opposed to intentional conduct- and defined "more narrowly the circumstances in which a depraved indifference charge would be appropriate."

The Second Circuit went on to evaluate the merits of Gutierrez's appeal, affirming his conviction for depraved indifference murder, based upon a review of what it called the "limited New York precedents available." A defendant is guilty of depraved indifference murder - a form of second degree murder in New York - when, "under 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." Comparing the specific factual evidence in this case - a spontaneous bar room brawl that continued and escalated outside, Gutierrez pulling out and waving a knife at several men accidentally stabbing one victim before pursuing and stabbing Villaplana, Gutierrez leaving Villaplana standing as he fled - to those in the leading comparable precedential decisions, the court found a reasonable jury could have concluded that Gutierrez "wielded his knife haphazardly, without intending to kill anyone, but nevertheless indifferent as to whether he inflicted fatal injuries." The court also declined to certify the case to the New York Court of Appeals.

Panel (if known): JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.

Argument (if known): 2/12/2012

Date of Issued Opinion: 12/11/2012

Docket Number: 10-4478-pr

Decided: Affirmed

Case Alert Author: Elyse Diamond Moskowitz

Counsel (if known): JACQUELINE P. RUBIN (Janna Berke, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, NewYork, N.Y., for Petitioner-Appellant.
GLENN GREEN, Assistant District Attorney, for Thomas J. Spota, District Attorney, Suffolk County, Riverhead, N.Y., for Respondent-Appellee.

Author of Opinion: Judge Calabresi

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

Edited: 12/12/2012 at 10:12 AM by Media Alerts Moderator

    Posted By: Elyse Diamond @ 12/11/2012 03:23 PM     2nd Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top