Thoughts on the culpable mental states … and depraved indifference

Crimes that are not strict liability offenses require a "culpable mental state."  According to Penal Law § 15.00(6), this term "means 'intentionally' or 'knowingly' or 'recklessly' or with 'criminal negligence,' as these terms are defined in section 15.05." 

How then, could, the Court of Appeals hold in People v. Feingold that depraved indifference is a culpable mental state?  This seems to contradict the plain meaning of § 15.00, which identifies four and only four culpable mental states.  Curiously, this issue is not raised anywhere in Feingold or in any of the cases leading up to it, except for Register, which Feingold of course overruled.  In Register, the majority held:

Further evidence that “recklessness” is the mens rea, and the only mens rea, of the crime is to be found in other sections of article 15. Section 15.05, which was intended to “limit and crystalize” the culpable mental states involved in the criminal law (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 15.05), includes recklessness as one of those culpable mental states but it does not list “depraved indifference”. Moreover, subdivision 1 of section 15.15 provides that when an offense requires a particular culpable mental state, such mental state is designated by use of the terms found in section 15.05. When only one culpable mental state appears in a statute defining an offense, section 15.15 directs that the mental state is presumed to apply to every element of the offense. The only culpable mental state found in section 125.25 which defines depraved mind murder is recklessness; it is defined in subdivision 3 of section 15.05 (which prohibits evidence of intoxication to negative it) and the statute prescribes that it apply to every element of the offense.

The Register dissent draws mainly on history to make the argument that depraved indifference is its own culpable mental state.  It addresse the majority's Penal Law §§ 15.05 and 15.15 argument by contending without citation to authority, that the four culpable mental states were not meant to be an "all inclusive list."  But this seems to be contradicted by the plain text of Penal law § 15.00(6), which says that the term means intentionally, knowingly, reckless, or criminal negligence.  The Legislature did not appear to leave room for the court to read in new culpable mental states. (LC)

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