The Advocate
Richard Blassberg


Only The Legislature, Not The Courts, May Enact Law
“To convict a man for an act the law does not make criminal inherently results in a complete miscarriage of justice.”
Davis v. United States, 417 U.S. 333, 346 (1974)

Surely, the New York State legislature had little inkling what an enigma they were creating forty years ago when they installed the Depraved Indifference Murder Statute into the State Criminal Code. Undoubtedly, neither did they realize what a device, what an unfair, and unconstitutional ‘leg up’ that piece of legislation would be turned into over the next four decades by devious, and unscrupulous, prosecutors.

Nevertheless, a statute intended to criminalize a reckless act, one so reckless as to be performed by someone without regard for who, if anyone, or whether anyone, might possibly be killed as a result of that act,___a rare circumstance in the realm of homicide___ would become the crime for which increasingly large numbers of individuals would be prosecuted and convicted.

Most disturbingly, with regard to such prosecutions, prosecutors throughout the state, some more frequently than most, unlawfully, and unconstitutionally abused, and took advantage of the nebulousness and poorly-defined elements of the crime, more often than not, charging defendants with both Intentional Murder, and, in the alternative, Depraved Indifference Murder, sometimes referred to as Depraved Mind
Murder. It’s use as a ‘fall-back’ position by self-serving district attorneys, with little patience for individual’s Constitutional Rights, prosecutors such as Jeanine Pirro, became a scandal before the New York Court of Appeals finally agreed to look at the matter more pragmatically, if not more selflessly, in Gonzalez, in 2004.

Gonzalez, authored by Chief Judge Judith Kaye, a case from the City of Rochester, involved a defendant, who, having fired 8 rounds
into the head and back of his victim, most as that victim lay facedown on the floor of a barbershop, was nevertheless acquitted of Intentional
Murder, but convicted of Depraved Indifference Murder, each, incidentally, Murder in the Second Degree, punishable by up to 25-Years-to-Life in Prison. In Gonzalez, the state’s highest court finally decided to grapple with, what had become such a conspicuous problem. They had little choice. However, it was never their intention to deal with the statute in a comprehensive fashion, but rather to handle each problem that arose from its misapplication over nearly forty years, one appeal at a time, one issue at a time. In Gonzalez, the state’s High Court, in finding for the Defendant, made it clear that a killing in which numerous rounds were fired into the body of a victim at point-blank range, left little doubt that the shooter intended to kill his victim, and, therefore, could not be prosecuted, nor convicted under a theory of Depraved Indifference, as plainly there was no indifference as to the highly probable deadly result. Having already been found innocent of Intentional
Murder at trial, the Court of Appeals decision was Mr. Gonzalez’ ‘walking papers.’

Naturally, Gonzalez spawned a line of cases, already into the appeals process, perhaps the most significant of which, within a year, or so, was Payne. Unlike Gonzalez, the fact-pattern in the Payne case, which stemmed from a killing on Long Island, although involving a shooting, involved only one shot, that shot fired by an irate neighbor using a shotgun, again, at point-blank range, aimed at the victim’s abdomen had also produced a conviction for Depraved Indifference Murder, the trier of fact having rejected an alternate Intentional Murder charge.

In the decision, written by Justice Rosenblatt of the Court of Appeals, despite the fact that the killing involved the firing of just one
round, the nature of the weapon, a shotgun, and the injury certain to occur given the proximity and nature of the point of entry, left little likelihood that the victim would not die, thus negating any reasonable notion of indifference on the part of the shooter as to the deadly outcome. Rosenblatt, who for many years had been pushing the Court to begin dealing with the mounting Depraved Mind conviction appeals, took the time and effort to didactically spell out the notion, declaring, “Moreover, it should be obvious that the more the defendant shoots (or stabs, or bludgeons) the victim, the more clearly intentional is the homicide.” The Court further stated, “A one-on-one shooting
or knifing (or similar killing) can almost never qualify as Depraved Indifference Murder.”

Here in Westchester, where Jeanine Pirro, for twelve long years, insisted upon charging as many defendants as possible with both Intentional, and Depraved Indifference Murder, offering a kind of ‘smorgasbord option’ to jurors who might not feel that the facts presented justified
conviction of Intentional, two defendants, in particular, one exonerated following appeal, the other currently on appeal, illustrate not only the connivance of a misguided District Attorney, but also the failure of the State’s highest court to fully and fairly deal with the consequences of
their own procrastination, having not righted the wrongful manipulation of juries for many years. Those two defendants are Anthony DiSimone, unlawfully convicted of Depraved Indifference Murder, in the stabbing death of Louis Balancio in 1994, now exonerated by a mountain of withheld exculpatory evidence, and freed by the United States Second Circuit Court of Appeals, and Richard DiGuglielmo, a New York City Transit Police Officer who saved his father’s life from a bat-wielding attacker, with a long history of arrest for violent crime, Charles Campbell, killing him with “three shots to center mass,” as instructed in the Police Manual of Procedure.

Even if Officer DiGuglielmo was not under a sworn duty to deal with Mr. Campbell precisely as he did; even if he was a civilian, his killing of Campbell was a justifiable homicide under New York’s Statute of Self-defense, Defense of Others. Yet somehow, a jury that refused not only to convict him of Intentional Murder, but also Assault, was unlawfully instructed and tricked into convicting him of Depraved Indifference Murder. That conviction is presently on appeal in Westchester County Court on a 440.10 Motion not only claiming a failure
of the District Attorney’s Office to present sufficient evidence of Depraved Mind Murder, but also establishing both Brady and Rosario
violations by that Office, in their intentional concealment, once again, of exculpatory statements of witnesses.

The District Attorney’s Of-fice, smarting from the bloody nose they suffered with DiSimone, now, once again, confronted with evidence of similar indefensible prosecutorial misconduct, in a weak attempt to procedurally bar Mr. DiGuglielmo from availing himself of the State Court of Appeals’ recent decisions more precisely defining the elements of Depraved Indifference Murder, and grasping at the notion as expressed in Policano, a case out of Brooklyn, that decisions in Gonzalez and Payne do not apply retroactively, “as a matter of state law,” would like the reviewing Court to deny Mr. DiGuglielmo due process, by keeping him in prison for conduct that was not a crime under
the statute he was convicted of violating, in effect, punishing him for a crime the State Legislature never created.

Finally, despite the Westchester District Attorney’s Office’s position, and the reluctance of the New York State Court of Appeals to accept responsibility for permitting the injustices associated with Depraved Mind Murder to go on for nearly forty years, the simple truth remains that there is only one Depraved Indifference Murder Statute, enacted by the New York State Legislature, and put on the books in 1967. No matter how many interpretations and re-definings of that law the Court of Appeals may ultimately hand down, that Court, nor any other
court, can change or rewrite the Law. Only the Legislature may do that. It has to do with Separation Of Powers, a fundamental principle
of our Democracy.

Concerning Mr. DiGuglielmo and all other defendants currently, or in the future, appealing conviction under the Statute of Depraved Indifference Murder, the law is the law. Only the caselaw that has evolved over four decades may at one time be “good law” and over time, no longer be, depending upon the whim and disposition of the Court of Appeals. However, whatever the latest definition, and caselaw that
currently applies may happen to be, the benefit of that interpretation may not be denied those currently on appeal.