25 N.Y.3d 161 (2015)

A defendant cannot be convicted of both intentional murder and depraved indifference murder for the death of the same victim under a transferred intent theory, and the admission of grand jury testimony of an unavailable witness violates the Confrontation Clause if the prosecution fails to establish a causal link between the defendant’s conduct and the witness’s unavailability.

Summary

Darius Dubarry was convicted of intentional murder, depraved indifference murder, attempted murder, and criminal possession of a weapon. The convictions stemmed from a shootout in which Dubarry, intending to shoot another individual, instead killed a bystander. The trial court submitted both intentional murder (based on transferred intent) and depraved indifference murder to the jury in the conjunctive, which was found to be improper as both charges could not apply to the same outcome. Additionally, the Court found that the trial court erred by admitting grand jury testimony of a witness who became unavailable due to alleged threats because the prosecution failed to establish that Dubarry procured the witness’s unavailability. The New York Court of Appeals modified the Appellate Division order, ordering a new trial on the intentional murder, depraved indifference murder, and attempted murder counts.

Facts

Dubarry, a member of the Lek Lekah Israelites, was involved in a shootout with Herburtho Benjamin. Dubarry and Benjamin exchanged gunfire, and a bystander was killed. Dubarry admitted to shooting at Benjamin but claimed he acted in self-defense. The prosecution sought to introduce grand jury testimony of a witness who claimed he saw Dubarry fire the first shot. However, the witness became unavailable, citing threats to his family. The trial court, after a Sirois hearing, allowed the prosecutor to read the witness’s grand jury testimony into evidence. The jury convicted Dubarry on multiple counts. Dubarry argued that the conjunctive submission of intentional and depraved indifference murder was improper, and the admission of the grand jury testimony violated his Sixth Amendment rights.

Procedural History

Dubarry was convicted in the trial court on multiple charges including intentional murder, depraved indifference murder, and attempted murder. The Appellate Division affirmed the convictions. The New York Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the trial court erred by submitting both depraved indifference murder and intentional murder to the jury in the conjunctive based on a transferred intent theory for the death of the same victim.

2. Whether the admission of the unavailable witness’s grand jury testimony violated Dubarry’s Sixth Amendment right to confrontation.

Holding

1. Yes, because the convictions for both intentional murder and depraved indifference murder were inconsistent and improper as they both applied to the death of the same person.

2. Yes, because the prosecution failed to establish a sufficient causal link between Dubarry’s conduct and the witness’s unavailability.

Court’s Reasoning

The court first addressed the conjunctive submission of the murder counts. The court cited *People v. Gallagher*, 69 N.Y.2d 525 (1987), which held that in single homicide cases, intentional and depraved indifference murder counts must be submitted to the jury in the alternative because guilt of one necessarily negates guilt of the other. The court explained that the transferred intent theory, under Penal Law § 125.25(1), allows for a defendant to be held liable for the crime they intended to commit, even if the actual victim was not the intended one. However, it held that it would be improper to apply transferred intent to the extent that it would result in multiple convictions for the death of a single person based on conflicting mental states. The court stated, “The act is either intended or not intended; it cannot simultaneously be both.”

The Court then addressed the admission of the grand jury testimony, citing *Crawford v. Washington*, 541 U.S. 36 (2004), which established the right to confront witnesses. The Court noted an exception where the prosecution establishes by clear and convincing evidence that the defendant procured the witness’s unavailability. In this case, the Court found the evidence insufficient to establish a link between Dubarry and the threats. The court emphasized the lack of evidence showing Dubarry directly communicated with the witness, or anyone who threatened the witness, to influence his testimony. The court stated, “In order to infer the misconduct required by our case law, there must be some analytic basis to trace the threats back to defendant…” The court found that there was a lack of evidence of a causal link between the defendant and the witness’s unwillingness to testify.

Practical Implications

This case has critical implications for prosecutors and defense attorneys in cases involving transferred intent and witness unavailability. Prosecutors must be extremely careful when seeking multiple convictions based on different mental states. They must also gather strong evidence of a defendant’s direct involvement or knowledge in procuring a witness’s unavailability, with a clear causal link. The Court emphasized that evidence must show misconduct aimed at preventing the witness from testifying, which was a significant cause of the witness’s decision not to testify. Defense attorneys can use this case to argue against multiple murder convictions for the same outcome and to challenge the admissibility of prior statements from unavailable witnesses.

Later cases may also consider this precedent when determining what constitutes “misconduct” in the context of witness tampering.

This case demonstrates that the court will not permit multiple convictions where the defendant is essentially being punished twice for the death of a single victim with inconsistent mental states. It also reinforces the high burden of proof for the prosecution to prove the defendant engaged in misconduct that resulted in witness unavailability, and that the burden cannot be met with speculation.

Later cases may consider this case when analyzing whether a prosecutor’s use of evidence creates a violation of the confrontation clause.

Meta Description

The *Dubarry* case clarified the limits of transferred intent in New York, preventing double convictions for a single homicide and setting a high bar for admitting grand jury testimony when a witness becomes unavailable.

Tags

People v. Dubarry, New York Court of Appeals, 2015, Transferred Intent, Confrontation Clause, Witness Tampering, Multiple Convictions