10-224-pr Rivera v. Cuomo UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 -------- 3 August…

10-224-pr
Rivera v. Cuomo
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
-------- 3
August Term, 2010 4
(Argued: May 13, 2011 Decided: August 9, 2011) 5
6
Docket No. 10-224-pr 7
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JOHN RIVERA, 10
11
Petitioner/Appellant, 12
13
- v. - 14
15
ANDREW CUOMO, NEW YORK STATE ATTORNEY 16
GENERAL and JOSEPH SMITH, SUPERINTENDENT, 17
SHAWANGUNK CORRECTIONAL FACILITY, 18
19
Respondents/Appellees. 20
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23
Before: McLAUGHLIN, POOLER, B. D. PARKER, Circuit Judges. 24
25
Petitioner-Appellant John Rivera (“Rivera”) was convicted of 26
one count of depraved indifference murder in violation of New 27
York Penal Law § 125.25(2). He now appeals from a judgment 28
entered in the United States District Court for the Eastern 29
District of New York (Townes, J.) denying his petition for a writ 30
of habeas corpus pursuant to 28 U.S.C. § 2254. On appeal, Rivera 31
argues that the district court erred in holding that the 32
applicable law of depraved indifference murder was the law in 33

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effect when Rivera was convicted on September 19, 1997. We 1
agree, and hold that the district court should have applied the 2
law as it existed at the time Rivera’s conviction became final, 3
i.e., once the period in which Rivera’s time to file a writ of 4
certiorari to the United States Supreme Court expired. Rivera 5
also argues that, in July 2004, the evidence adduced at trial was 6
legally insufficient to support a conviction for depraved 7
indifference murder. Again, we agree, and hold that, at the time 8
Rivera’s conviction became final in July 2004, no reasonable jury 9
could have found Rivera guilty of depraved indifference murder. 10
Accordingly, the judgment of the district court is REVERSED and 11
REMANDED with instructions to grant Rivera’s petition for a writ 12
of habeas corpus. 13
WILLIAM CARNEY, The Legal Aid Society, 14
Criminal Appeals Bureau, New York, New 15
York, for Appellant. 16
17
CHARLES J. HYNES (Leonard Joblove and 18
Seth M. Lieberman, Assistant District 19
Attorneys), District Attorney, Kings 20
County, Brooklyn, New York, for 21
Respondents-Appellees. 22
23
McLAUGHLIN, Circuit Judge: 24
Petitioner-Appellant John Rivera (“Rivera”) was convicted on 25
September 19, 1997, of one count of depraved indifference murder 26
in violation of New York Penal Law § 125.25(2) after his 27
estranged wife died from a single gunshot wound to the head at 28
point-blank range. In December 2003, the Appellate Division 29
2

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rejected Rivera’s direct appeal, People v. Rivera, 2 A.D.3d 884 1
(2d Dep’t 2003), and, on April 14, 2004, Judge Rosenblatt of the 2
New York Court of Appeals denied Rivera leave to appeal to that 3
court, People v. Rivera, 2 N.Y.3d 764 (2004). 4
Rivera subsequently filed a petition for a writ of habeas 5
corpus in the United States District Court for the Eastern 6
District of New York (Townes, J.), arguing that the evidence was 7
insufficient to support a conviction for depraved indifference 8
murder. Applying the New York law of depraved indifference in 9
existence at the time Rivera was convicted at trial in September 10
1997, the district court denied relief. See Rivera v. Cuomo, No. 11
05-CV-1699, 2009 WL 4929264, at *22-23, 25 (E.D.N.Y. Dec. 21, 12
2009). Rivera now appeals. In June 2010, this Court granted a 13
certificate of appealability on the specific issue of “whether, 14
under the law as it existed when appellant’s conviction became 15
final, the evidence was legally sufficient to support a 16
conviction for depraved indifference murder.” 17
On appeal, Rivera raises two arguments. First, Rivera 18
argues that the district court erred in applying the law in 19
effect when he was convicted at trial on September 19, 1997 20
rather than the law in effect at the time his conviction became 21
final on July 13, 2004. Second, Rivera argues that, under the 22
law in effect at the time his conviction became final, the 23
3

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evidence was legally insufficient to support a conviction for 1
depraved indifference murder. 2
For the reasons that follow, we agree with both of Rivera’s 3
contentions. Accordingly, Rivera’s petition for a writ of habeas 4
corpus must be granted. 5
BACKGROUND 6
In its Memorandum and Order of December 21, 2009, the 7
district court provided a detailed account of the factual 8
background of the instant petition. See Rivera, 2009 WL 4929264, 9
at *1-15. We assume familiarity with the district court’s order 10
and repeat the facts herein only to the extent necessary to 11
explain our ruling. 12
On the night of January 13, 1997, Kimberly Cassas Rivera 13
(“Cassas”), Rivera’s estranged wife, suffered a single, fatal 14
gunshot wound to the head from a nine-millimeter Beretta handgun 15
fired at point-blank range. Rivera was ultimately indicted in 16
New York state court on two counts of murder in the second 17
degree––intentional murder in violation of New York Penal Law § 18
125.25(1) and depraved indifference murder in violation of § 19
125.25(2)–-as well as lesser charges not relevant to this appeal. 20
In the summer of 1997, Rivera was tried on these charges in 21
the Supreme Court for the State of New York, Kings County. 22
Despite the dual indictment, at trial, the prosecution pursued a 23
single theory of intentional murder. Specifically, the 24
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prosecution argued that, after a short and tumultuous marriage, 1
and angry that Cassas was filing for divorce and seeking primary 2
custody of their infant son, Rivera, who had a history of violent 3
outbursts and domestic abuse, lured Cassas to his apartment with 4
the intention of killing her and then, while the two were 5
standing on the sidewalk outside the apartment, “put a 9mm 6
handgun to [her] head . . . and pulled the trigger.” J.A. 28. 7
All of the State’s evidence at trial was calculated to support 8
this theory of intentional murder, including evidence that Rivera 9
was in possession of the nine-millimeter Beretta handgun used to 10
kill Cassas immediately before the murder, testimony from 11
Cassas’s divorce lawyer that Rivera called her twice in the days 12
and hours before the murder threatening to kill Cassas with her 13
gun, and testimony from Rivera’s former employer that the day 14
before the shooting Rivera told his co-workers that he “couldn’t 15
take [Cassas], couldn’t stand her,” and wished her dead. J.A. 16
1020. 17
Indeed, in summation, the prosecutor told the jury: 18
The people maintain it was an intentional act . . 19
. . [E]veryone agrees that when you take this gun, 20
which they call a deadly weapon for a good reason, 21
and when it is pressed . . . against the head and 22
the trigger is pulled and the gun is discharged, 23
there can be no question in any reasonable person’s 24
mind that whoever pulled that trigger intended to 25
cause the death of the individual against whose 26
head it was pressed. So I submit that is not an 27
issue. This is an intent. An intent to kill. 28
J.A. 1463 (emphasis added). 29
30
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Throughout trial, Rivera’s sole defense was that Cassas 1
committed suicide. According to Rivera’s version, Cassas, who 2
had been depressed ever since their son’s birth eight months 3
earlier, showed up on the night of her death distraught and, 4
threatening to kill herself, pulled the Beretta handgun from her 5
car and put it to her head. Although Rivera attempted to take 6
the gun away from her, while the gun was pressed near her temple, 7
a distraught Cassas pulled the trigger, inflicting upon herself a 8
single gunshot wound to the head. In support of this theory, 9
Rivera presented, inter alia, both expert and eyewitness 10
testimony suggesting that, at some point immediately before the 11
gun went off, there had been a struggle between Rivera and Cassas 12
for possession of the gun. 13
During the trial, defense counsel moved to dismiss the 14
depraved indifference murder charge for lack of evidence. The 15
court denied the motion and charged the jury on both intentional 16
and depraved indifference murder, as well as on manslaughter in 17
the first degree as a lesser included offense to intentional 18
murder. Manslaughter as a lesser included offense to depraved 19
indifference murder (i.e., “reckless manslaughter”) was not 20
submitted to the jury. 21
The jury eventually found Rivera not guilty of intentional 22
murder, but guilty of depraved indifference murder––and found 23
Rivera guilty of the remaining misdemeanor charges not relevant 24
6

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to this appeal. The court then sentenced Rivera to 23 years to 1
life in prison on the depraved indifference murder charge. 2
On direct appeal, Rivera challenged his conviction for 3
depraved indifference murder on the ground that the evidence was 4
insufficient to support a finding of recklessness since all of 5
the evidence adduced at trial went to a theory of intentional 6
conduct. The Appellate Division rejected this argument and 7
upheld Rivera’s conviction. See Rivera, 2 A.D.3d at 884. 8
On April 14, 2004, Judge Rosenblatt of the New York Court of 9
Appeals denied Rivera leave to appeal to that court. See Rivera, 10
2 N.Y.3d at 764. 11
In April 2005, Rivera filed a petition for a writ of habeas 12
corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of 13
New York, on the sole ground that, by affirming Rivera’s 14
conviction for depraved indifference murder, the state courts 15
unreasonably applied federal law. See 28 U.S.C. § 2254(d). 16
Specifically, Rivera argued that the evidence was legally 17
insufficient in his case to support a finding of reckless and 18
depraved conduct since all of the evidence adduced at trial went 19
to a theory of intentional conduct, and therefore his conviction 20
violated the rule of Jackson v. Virginia, 443 U.S. 307 (1979), 21
requiring proof beyond a reasonable doubt of every element of a 22
crime to support a conviction. See Rivera, 2009 WL 4929264, at 23
*15. The district court disagreed, holding that, under the law 24
7

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of depraved indifference in effect at the time of Rivera’s trial 1
in September 1997, the evidence was legally sufficient to support 2
a conviction for depraved indifference murder. See id. at *22- 3
23, 25. Rivera now appeals. 4
In June 2010, this Court granted a certificate of 5
appealability on the specific issue of “whether, under the law as 6
it existed when appellant’s conviction became final, the evidence 7
was legally sufficient to support a conviction for depraved 8
indifference murder,” and this appeal ensued. 9
DISCUSSION 10
I. Standard of Review 11
We review the district court’s denial of habeas relief de 12
novo, Henry v. Ricks, 578 F.3d 134, 137 (2d Cir. 2009), accepting 13
the district court’s factual findings unless clearly erroneous, 14
Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009). 15
Under the Antiterrorism and Effective Death Penalty Act of 16
1996 (“AEDPA”), we may grant habeas relief only if the challenged 17
state court decision was “contrary to, or involved an 18
unreasonable application of, clearly established Federal law, as 19
determined by the Supreme Court of the United States.” 28 U.S.C. 20
§ 2254(d); Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009). A 21
state court decision involves an “unreasonable application of” 22
federal law “if it correctly identifies the governing legal 23
principle but unreasonably applies or unreasonably refuses to 24
8

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extend that principle to the facts of a particular case.” 1
Richard S. v. Carpinello, 589 F.3d 75, 80 (2d Cir. 2009). 2
II. Governing Federal Law 3
“Under the Due Process Clause of the Fifth and Fourteenth 4
Amendments, no conviction may be sustained ‘except upon proof 5
beyond reasonable doubt of every fact necessary to constitute the 6
crime . . . charged.’” Henry, 578 F.3d at 138 (quoting In re 7
Winship, 397 U.S. 358, 364 (1970)). A habeas petitioner “is 8
entitled to habeas corpus relief if it is found that upon the 9
record evidence adduced at trial no rational trier of fact could 10
have found proof of guilt beyond a reasonable doubt.” Jackson, 11
443 U.S. at 324. When reviewing the sufficiency of a state 12
conviction, “[t]his ‘standard must be applied with explicit 13
reference to the substantive elements of the criminal offense as 14
defined by state law.’” Langston v. Smith, 630 F.3d 310, 314 (2d 15
Cir. 2011) (quoting Jackson, 443 U.S. at 324 n.16). 16
III. Applicable State Law 17
Under New York law, a person is guilty of depraved 18
indifference murder when “[u]nder circumstances evincing a 19
depraved indifference to human life, he recklessly engages in 20
conduct which creates a grave risk of death to another person, 21
and thereby causes the death of another person.” N.Y. Penal L. § 22
125.25(2) (emphasis added). Thus, “recklessness” has always been 23
an element of the offense of depraved indifference murder, see, 24
9

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e.g., People v. Sanchez, 98 N.Y.2d 373, 380(2002), which the 1
prosecution had to prove beyond a reasonable doubt in order to 2
support Rivera’s conviction, see Langston, 630 F.3d at 314-15. 3
Because “one who acts intentionally in shooting a person to death 4
. . . cannot at the same time act recklessly,” People v. 5
Gallagher, 69 N.Y.2d 525, 528-29 (1987), “under N.Y. law, 6
intentional murder and depraved indifference murder are mutually 7
exclusive,” Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 812 (2d 8
Cir. 2000). 9
From 1983 to 2002, the N.Y. Court of Appeals understood 10
“depraved indifference” to “refer[] to neither the mens rea nor 11
actus reus” of the crime of depraved indifference murder, but to 12
the “factual setting in which the risk creating conduct must 13
occur.” People v. Register, 60 N.Y.2d 270, 276 (1983) (emphasis 14
removed from original); accord Sanchez, 98 N.Y.2d at 379-84. 15
Under this formulation, “the very facts establishing a risk of 16
death approaching certainty and thus presenting compelling 17
circumstantial evidence of intent—–for example, a point blank 18
shooting of a victim in the head—–likewise demonstrated depraved 19
indifference.” Policano v. Herbert, 7 N.Y.3d 588, 601 (2006). 20
In 2003, however, in People v. Hafeez, the New York Court of 21
Appeals departed slightly from this earlier understanding of 22
“depraved indifference,” recognizing that certain murders are so 23
“quintessentially intentional” that they cannot properly be 24
10

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categorized as depraved indifference murder. See 100 N.Y.2d 253, 1
257-59 (2003); see also People v. Feingold, 7 N.Y.3d 288, 294 2
(2006) (noting that the shift away from the Register/Sanchez 3
formulation of depraved indifference murder began with Hafeez). 4
In that case, Hafeez had plotted for months with a friend to get 5
revenge on the victim––with whom they had a previous 6
altercation––and had lured the victim out of a bar, where, after 7
a brief struggle, the friend administered a fatal wound to the 8
victim’s heart with a knife. See Hafeez, 100 N.Y.2d at 257. At 9
trial, the State pursued a theory of intentional murder: the 10
defendants plotted the murder for months in advance, lured the 11
victim out of the bar to a place “where he would be vulnerable to 12
attack,” and then killed the victim instantly by way of a “single 13
deliberate wound” to his chest. See id. at 258. Hafeez, on the 14
other hand, insisted that the death was accidental: he and his 15
friend intended only to beat up the victim but, during a “quick- 16
moving fistfight,” the victim was accidentally stabbed. See id. 17
at 261 (dissent). The jury acquitted Hafeez of intentional 18
murder, but convicted him of depraved indifference murder. 19
On appeal, the N.Y. Court of Appeals held that, despite some 20
possible evidence of a struggle, because the overwhelming weight 21
of the evidence suggested that Hafeez and his friend had plotted 22
the attack ahead of time, deliberately lured the victim out of 23
the bar to effectuate their plan, and killed the victim by way of 24
11

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a “single deliberate wound,” the attack was “quintessentially 1
intentional,” and therefore the “‘heightened recklessness’ 2
required for depraved indifference murder was simply not 3
present.” See id. at 258-59 (quoting Sanchez, 98 N.Y.2d at 380). 4
As such, because “the actions of both defendants were focused on 5
first isolating, and then intentionally injuring, the victim,” 6
no reasonable jury could have found Hafeez guilty of depraved 7
indifference murder rather than intentional murder. Id. at 259. 8
The N.Y. Court of Appeals further eroded its prior case law 9
in People v. Gonzalez, decided in March 2004. See 1 N.Y.3d 464, 10
467 (2004). Finding that defendant’s act of shooting his victim 11
at close range could not be depraved indifference murder, the 12
court explained: 13
Depraved indifference murder differs from 14
intentional murder in that it results not from a 15
specific, conscious intent to cause death, but from 16
an indifference to or disregard of the risks 17
attending defendant’s conduct. . . . [W]here, as 18
here, a defendant’s conduct is specifically 19
designed to cause the death of the victim, it 20
simply cannot be said that the defendant is 21
indifferent to the consequences of his or her 22
conduct. 23
24
Id. at 467. Were it otherwise, the court cautioned, it would 25
“improperly convert every intentional homicide into a depraved 26
indifference murder,” id. at 468, since there is always some 27
remote chance, if the jury wishes to so speculate, that a 28
defendant who shot his victim point blank did so spontaneously or 29
accidentally, see id. at 467-68. The court made clear, however, 30
12

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that such speculation cannot convert an intentional homicide into 1
depraved indifference murder. See id. 2
After Rivera’s conviction became final in July 2004, the New 3
York Court of Appeals decided a number of additional cases that 4
further recast the Register/Sanchez formulation of depraved 5
indifference murder, see People v. Payne, 3 N.Y.3d 266 (2004); 6
People v. Suarez, 6 N.Y.3d 202 (2005), until finally, in People 7
v. Feingold, the court formally overruled Register and Sanchez. 7 8
N.Y.3d 288, 292, 296 (2006); see also id. (stating that, in 9
overruling Register and Sanchez, the court was simply “confirming 10
what [was] implicit in the line of cases [beginning with] 11
Hafeez”). However, because these cases were decided after 12
Rivera’s conviction became final in July 2004, we cite to them 13
only to the extent that they provide a clarification of pre- 14
existing law. See Henry, 578 F.3d at 138; People v. Policano, 7 15
N.Y.3d 588, 603-04 (2006). In any event, as discussed further 16
below, even in the absence of these additional cases, the New 17
York Court of Appeals had made sufficiently clear by the time 18
Rivera’s conviction became final in July 2004 that facts such as 19
those in Rivera’s case could not support a conviction for 20
depraved indifference murder. 21
IV. Law To Be Applied On Collateral Review 22
For habeas purposes, a New York state-court conviction 23
becomes final 90 days after the New York Court of Appeals denies 24
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leave to appeal, which is when the petitioner’s time to apply for 1
a writ of certiorari to the United State Supreme Court expires. 2
See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). 3
V. Analysis 4
As a preliminary matter, the district court erred in finding 5
that the applicable law of depraved indifference murder was the 6
law in effect when Rivera was convicted at trial on September 19, 7
1997. See Rivera, 2009 WL 4929264, at *23. Instead, the 8
district court should have applied the law as it existed at the 9
time Rivera’s conviction became final, 90 days after the New York 10
Court of Appeals denied Rivera leave to appeal to that court. 11
See Fernandez, 402 F.3d at 112. Applying this rule, Rivera’s 12
conviction became final on July 13, 2004. Since, as we explain 13
in further detail below, the date used to determine which version 14
of New York law to apply is determinative in Rivera’s case, we 15
reverse the district court on this point. 16
Turning to the merits, Rivera asks us to find that, by the 17
time his conviction became final in July 2004––and thus after 18
Hafeez and Gonzalez had been decided––the law of depraved 19
indifference had so fundamentally changed that no point-blank, 20
one-on-one shooting could be depraved indifference murder. 21
Appellant’s Br. 43-44. The State, on the other hand, suggests 22
that Hafeez and Gonzalez effected no change in New York’s law of 23
depraved indifference murder because both of those decisions 24
14

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“necessarily rest on the particular facts of [those] cases.” 1
Appellee’s Br. 48-54. Thus, the State argues, the decisions in 2
Hafeez and Gonzalez have no bearing on Rivera’s case. Id. at 49. 3
While we decline to go as far as Rivera urges, neither do we 4
accept the State’s position. Rather, we find that, although 5
perhaps some point-blank shootings could still have been 6
categorized as depraved indifference murder when Rivera’s 7
conviction became final in July 2004, cf. People v. Baptiste, 51 8
A.D.3d 184, 185 (3d Dep’t 2008) (concluding that the law did not 9
completely change until the New York Court of Appeals decided 10
Payne in October 2004), by that time, under any reasonable view 11
of the evidence adduced at trial, Rivera’s point-blank shooting 12
of Cassas––which, as explained in further detail below, was 13
either undoubtedly intentional or accidental in the course of a 14
struggle––could not support a depraved indifference murder 15
conviction. As such, by upholding Rivera’s conviction for 16
depraved indifference murder in July 2004, the state courts 17
unreasonably applied federal law. See 28 U.S.C. § 2254(d); 18
Jackson, 443 U.S. at 315, 324. 19
Viewing the evidence adduced at Rivera’s trial in the light 20
most favorable to the verdict, as we must at this juncture, see 21
id. at 319, a reasonable jury could have found either of two 22
possible scenarios to explain Cassas’s death. First, a 23
reasonable jury could have found, as the State argued at trial, 24
15

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that Rivera plotted his attack on Cassas in advance, lured her to 1
his home on the night of the murder, and then deliberately “put a 2
nine millimeter semiautomatic Beretta handgun to [her] head . . . 3
and pulled the trigger.” J.A. 28. After Hafeez, however, such a 4
“quintessentially intentional attack” could no longer be 5
categorized as depraved indifference murder. See id. at 258-59. 6
Thus, to the same extent as in Hafeez, in Rivera’s case, no 7
reasonable jury could find Rivera guilty of depraved indifference 8
murder rather than intentional murder on such facts. See id. at 9
259. 10
Moreover, any doubt that may have remained after Hafeez as 11
to whether such a “quintessentially intentional” killing could 12
support a conviction for depraved indifference murder was 13
definitively laid to rest in Gonzalez (which we note had not yet 14
been decided at the time of Rivera’s trial or appeal to the 15
Appellate Division), when the New York Court of Appeals declared 16
that “where . . . a defendant’s conduct is specifically designed 17
to cause the death of the victim”––as would have been the case if 18
the jury found that Rivera lured Cassas to his apartment, 19
intentionally put the gun to her temple, and pulled the 20
trigger––“it simply cannot be said that the defendant is 21
indifferent to the consequences of his or her conduct.” 1 N.Y.3d 22
at 467, 469; accord Payne, 3 N.Y.3d at 270 (stating that Hafeez, 23
Gonzalez, and Sanchez “made it clear that depraved indifference 24
16

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murder may not be properly charged in the overwhelming majority 1
of homicides that are prosecuted in New York”). 2
Alternatively, the State now contends––contrary to its 3
position at Rivera’s trial––that a reasonable jury could also 4
have found that, after bringing the gun to his meeting with 5
Cassas in an attempt to scare or intimidate her, Rivera 6
accidentally shot Cassas when the gun discharged during a 7
struggle. 1 The State argues that this alternative set of facts 8
would support a conviction for depraved indifference murder 9
because the act of “confronting [Cassas] . . .with a loaded 10
weapon, thereby precipitating a struggle for the gun,” was 11
sufficiently reckless to render Cassas’s resulting death depraved 12
indifference murder. Appellee’s Br. 39-40. This argument is 13
1 We note that this theory hinges on a good deal of speculation,
as it is relies in large part on the defense’s evidence at trial
that a struggle over the gun ensued when Rivera attempted to stop
Cassas from shooting herself in the head. See, e.g., Appellee’s
Br. 23-24, 26-27, 43; see also Langston, 630 F.3d at 314
(cautioning that “a conviction based on speculation and surmise
alone cannot stand, and courts cannot credit inferences within
the realm of possibility when those inferences are
unreasonable”); id. (explaining that, where an inference is
necessary to support an element of the crime, “it is not enough
that the inferences in the government’s favor are permissible”;
rather, the “inferences must be sufficiently supported to permit
a rational juror to find that the element is established beyond a
reasonable doubt”); Gonzalez, 1 N.Y.3d at 467-68 (rejecting the
prosecution’s speculative argument that the jury may have
concluded that defendant recklessly fired the first shot
spontaneously or impulsively rather than intentionally).
However, without passing on the reasonableness of this theory in
light of the trial record, we accept this version of the facts as
plausible for purposes of this appeal and proceed accordingly.
17

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without merit, however, as such facts would not rise to the level 1
of depraved indifference murder even under Register and Sanchez. 2
As the New York Court of Appeals has repeatedly explained, 3
to find depraved indifference murder rather than manslaughter, 4
the jury needs to 5
find defendant’s conduct, beyond being reckless, so 6
wanton, so deficient in a moral sense of concern, 7
so devoid of regard of the life or lives of others, 8
and so blameworthy as to warrant the same criminal 9
liability as that which the law imposes upon a 10
person who intentionally causes the death of 11
another. 12
13
People v. Fenner, 61 N.Y.2d 971, 973 (1984); accord Gonzalez, 1 14
N.Y.3d at 467. The New York Court of Appeals further reinforced 15
the distinction between depraved indifference murder and 16
manslaughter in Sanchez: 17
[T]he majority writing in Register does not hold 18
that “ordinary recklessness” is sufficient to 19
establish depraved indifference murder. Register 20
requires a significantly heightened recklessness, 21
distinguishing it from manslaughter in two ways. 22
First, “in a depraved mind murder the actor’s 23
conduct must present a grave risk of death whereas 24
in manslaughter it presents the lesser substantial 25
risk of death.” Then, it also requires proof of 26
circumstances manifesting a depraved indifference 27
to human life, focusing the injury, as we have 28
seen, “upon an objective assessment of the degree 29
of risk” which “converts the substantial risk 30
present in manslaughter into a very substantial 31
risk.” 32
33
98 N.Y.2d at 380 (quoting Register, 60 N.Y.2d at 276) (internal 34
citations omitted) (first emphasis added); see also id. (“[T]he 35
statutory requirement that the homicide result from conduct 36
18

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evincing a depraved indifference to human life is a legislative 1
attempt to qualitatively measure egregiously reckless conduct and 2
to differentiate it from manslaughter.” (quoting Register, 60 3
N.Y.2d at 279) (emphasis in original)). 4
Quintessential examples of such “significantly heightened 5
recklessness,” id., include intentionally firing multiple shots 6
into a crowd, see Fenner, 61 N.Y.2d at 973, intentionally firing 7
several shots through a lit window next to which the decedent was 8
standing, see People v. Jernatowski, 238 N.Y. 188, 193 (1924), 9
intentionally firing a pistol through a door into a small, 10
enclosed space that the shooter knew contained the victim, see 11
People v. Mannix, 302 A.D.2d 297, 297-98 (1st Dep’t 2003), 12
intentionally driving an automobile along a crowded sidewalk at 13
high speed, see People v. Gomez, 65 N.Y.2d 9, 12 (1985), or 14
shooting a partially loaded gun at a person’s chest during a game 15
of Russian roulette, see People v. Roe, 74 N.Y.2d 20, 27-28 16
(1989). 17
None of these fact patterns are analogous to Rivera’s case, 18
however. To wit, the mere act of bringing a gun to a contentious 19
confrontation, as Rivera may have done––while grossly reckless 20
and perhaps posing the “substantial risk,” Sanchez, 98 N.Y.2d at 21
380, required to support a conviction for manslaughter––is not 22
“so wanton, so deficient in a moral sense of concern, so devoid 23
of regard of the life or lives of others, and so blameworthy,” 24
19

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Fenner, 61 N.Y.2d at 973, as to render a resulting death depraved 1
indifference murder as opposed to manslaughter. See Gonzalez, 1 2
N.Y.3d at 467; Sanchez, 98 N.Y.2d at 378-84; Fenner, 61 N.Y.2d at 3
973; People v. Magliato, 110 A.D.2d 266, 270 (1st Dep’t 4
1985)(reducing conviction from depraved indifference murder to 5
manslaughter because defendant’s conduct of bringing a loaded gun 6
to a confrontation, then cocking the gun and aiming it at 7
victim’s head, where it accidentally discharged and fired a fatal 8
bullet into the victim’s forehead, was not so egregiously 9
reckless that it rendered the killing depraved indifference 10
murder rather than manslaughter under Register and its progeny), 11
aff’d, 68 N.Y.2d 24 (1986); id. (“If . . . the jury concluded 12
[that] the actual firing of the weapon was accidental, the 13
recklessness of defendant in placing himself in the position 14
where this could happen did not rise to the point where it was 15
the equivalent of [depraved indifference] murder.”). In fact, in 16
Payne, the New York Court of Appeals made clear that, although it 17
is “reckless” to “br[ing] a weapon to a contentious 18
confrontation” or “wield a weapon carelessly,” the law does not 19
hold that “any homicide that results [from such conduct] could 20
qualify as depraved indifference murder.” 2 3 N.Y.3d at 270. 21
2 While we recognize that this case was decided after Rivera’s
conviction became final, because this proclamation serves as a
clarification of existing law rather than a statement of new law,
we may rely on it on collateral review. See Henry, 578 F.3d at
138.
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Respondent has not provided, nor were we able to find, any case 1
to the contrary, in which a New York appellate court has held 2
that the mere act of bringing a gun to a contentious 3
confrontation, without more, could rise to the level of depraved 4
indifference murder. 5
Were there evidence that Rivera intentionally pulled the 6
trigger of the gun during the struggle, then perhaps his conduct 7
might rise to the level of depraved indifference murder. See, 8
e.g., People v. Lanier, 275 A.D.2d 937, 937 (4th Dep’t 2000) 9
(finding that defendant’s conviction for depraved indifference 10
murder was appropriate because a reasonable jury could have 11
concluded that, although defendant did not have the conscious 12
objective to cause the victim’s death when he acted, his conduct 13
of firing several shots during his struggle with the victim was 14
“reckless[]” and “evinc[ed] a depraved indifference to human 15
life”). But there is no such evidence in this case. In fact, 16
there was no testimony at Rivera’s trial suggesting that Rivera 17
meant only to threaten or frighten Cassas, or that Rivera held 18
the gun to Cassas’s head, before the gun discharged. In the 19
absence of such evidence, the jury may not use its imagination to 20
fill in the blanks. See Langston, 630 F.3d at 314 (“[A] 21
conviction based on speculation and surmise alone cannot stand, 22
and courts cannot credit inferences within the realm of 23
possibility when those inferences are unreasonable” (internal 24
21

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citations and quotations marks omitted)); see also Gonzalez, 1 1
N.Y.3d at 467-68 (making clear that “no rational jury could have 2
accepted” the prosecution’s speculative argument that the 3
defendant recklessly fired his gun “spontaneously or impulsively” 4
rather than intentionally just so that defendant’s conviction for 5
depraved indifference murder could stand). Thus, in light of the 6
clear guidance from New York’s appellate courts regarding the 7
“significantly heightened recklessness” required to support a 8
conviction for depraved indifference, Sanchez, 98 N.Y.2d at 380, 9
no reasonable jury could have found that the mere act of 10
“confronting [Cassas] . . . with a loaded weapon, thereby 11
precipitating a struggle for the gun,” Appellee’s Br. 39-40, 12
without more, could support a conviction for depraved 13
indifference murder. 14
Since neither of the two permissible views of the evidence 15
adduced at Rivera’s trial––that Rivera either (1) plotted to kill 16
Cassas, lured her to his apartment, and then intentionally shot 17
her once in the head at point-blank range; or (2) brought a gun 18
to his meeting with Cassas and then accidentally discharged the 19
weapon into her head during a struggle––carried the requisite 20
degree of recklessness needed to support a conviction for 21
depraved indifference murder when Rivera’s conviction became 22
final in July 2004, upholding Rivera’s conviction constituted an 23
“unreasonable application of clearly established federal law,” 28 24
22

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U.S.C. § 2254(d), namely the mandate in Jackson that the jury 1
find each element of the crime beyond a reasonable doubt. See 2
443 U.S. at 315, 324. As such, we are compelled to reverse and 3
remand this case with instructions to grant Rivera’s petition for 4
a writ of habeas corpus. See id.; 28 U.S.C. § 2254(d). 5
CONCLUSION 6
7
In light of the foregoing, the judgment of the district 8
court is REVERSED and REMANDED with instructions to grant 9
Rivera’s petition for a writ of habeas corpus. 10
11
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