In People v. Valencia (Ct. App. 6/17/2010) (5-1-1), a majority of the court summarily affirmed the Appellate Division's decision reversing the defendant's conviction for Depraved Indifference Assault. Judges Graffeo and Jones each offered concurring opinions that provide insight into their views of the depraved indifference mental state as applied to DWI cases.
At trial, the trial court rejected the theory that the defendant acted with depraved indifference at the time of the car crash since he was not aware of the risk he caused due to his drunken state. That court nevertheless found the defendant guilty of Assault 1º under the theory that the defendant acted with depraved indifference by getting intoxicated knowing that the was going to drive himself home later. Judge Graffeo took up the question of whether intoxication negates depraved indifference. The intoxication defense does not, of course, apply to reckless crimes. But depraved indifference is not a recklessness mental state. It is a form of extreme recklessness. Without expressing an opinion on this issue, Judge Graffeo implored the Legislature to resolve the question as a matter of policy:
I therefore write separately to point out that the Legislature, which is entrusted with determining social policy and degrees of culpability, should resolve this perplexing question of whether intoxication, to whatever extent, functions as a defense to depraved indifference crimes.
There are a variety of options if the Legislature chooses to act. For example, Penal Law § 15.05 could be amended to add depraved indifference as a culpable mental state (consistent with Feingold) and specify, as it does with the mens rea of recklessness, that voluntary intoxication cannot be used to undermine a depravedly indifferent state of mind. The Legislature could also elect to include specific provisions in the first-degree assault and second-degree murder statutes to cover severely intoxicated drivers. This would differ from the existing aggravated vehicular assault and homicide statutes because they do not require the People to establish both excessive inebriation and serious injury or death to more than one person (see Penal Law §§ 120.04-a, 125.14). Or, if the Legislature sees fit, it could declare that intoxication is a defense to the depraved indifference mens rea component with respect to all crimes or just vehicular crimes. Although the courts have and will continue to rule on the applicability of the intoxication defense in particular cases, the Legislature is more suitably charged with determining the level of crime, the appropriate statutory defenses and the extent of punishment to attribute to the various crimes related to the operation of motor vehicles.
Judge Jones wrote separately to discuss the concurrence problem of the People's latter theory. "[T]he mens rea component of depraved indifference assault may not be satisfied by considering the defendant's state of mind at a point much earlier in time than the accident, in this instance when he was drinking at his friend's house. As such, it cannot be argued that defendant's mental state at the time he was drinking actuated his physical conduct. Stated differently, in this case, there is no concurrence of mens rea and actus reus." (LC)