CJI2d[NY] Penal Law § 125.25(4)

The (specify) count is Murder in the Second Degree.

Under our law, a person is guilty of Murder in the Second Degree when, under circumstances evincing a depraved indifference to human life and being eighteen (18) years old or more, he or she recklessly engages in conduct which creates a grave risk of serious physical injury or death to a person less than eleven (11) years old and thereby causes the death of such person.

The following terms used in that definition have a special meaning: ³

SERIOUS PHYSICAL INJURY means impairment of a person's physical condition which creates a substantial risk of death, or which causes death, or serious and protracted disfigurement, or protracted impairment of health or protracted loss or impairment of the function of any bodily organ.⁴

A person RECKLESSLY ENGAGES IN CONDUCT WHICH CREATES A GRAVE RISK OF SERIOUS PHYSICAL INJURY OR DEATH TO A PERSON when he or she:

engages in conduct which creates a grave and unjustifiable risk that serious physical injury or death of a person will occur,

and when he or she is aware of and consciously disregards that risk,

and when that grave and unjustifiable risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.⁵

Reckless conduct that results in death, however, is not enough to constitute this crime. And that is true no matter how grave or substantial the risk of death was.⁶ To constitute this crime, the evidence must show that the defendant acted under circumstances evincing a depraved indifference to human life. The fact that taking the life of another can itself, in a sense, be considered a "depraved" act does not, however, turn every killing into depraved indifference murder.⁷

DEPRAVED INDIFFERENCE TO HUMAN LIFE refers to a person’s state of mind in recklessly engaging in conduct which creates a grave risk of death.⁸ A person has a depraved indifference to human life when that person has an utter disregard for the value of human life – a willingness to act, not because he or she means to cause grievous harm [to the person who is injured], but because he or she simply does not care whether or not grievous harm will result.⁹ In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life - - that person does not care how the risk turns out.¹⁰ Depraved indifference to human life reflects a wicked, evil or inhuman state of mind, as manifested by brutal, heinous and despicable acts. It is evinced by conduct that is wanton, deficient in a moral sense of concern, devoid of regard for the life or lives of others,¹¹ and so blameworthy as to justify the same criminal liability that the law imposes on a person who intentionally kills. ¹²

[Add if appropriate: ¹³

A person acts with a depraved indifference to human life when, having a conscious objective not to kill but to harm, he or she engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim.]¹⁴

[Add if appropriate:

A person recklessly engages in conduct which creates a

grave risk of death to another when he or she creates the risk but is unaware of the risk solely by reason of his or her voluntary intoxication.¹⁵ However, in determining whether the defendant acted with depraved indifference to human life, you may consider whether the defendant's mind was affected by intoxicants to such a degree that he was incapable of forming the mental state of depraved indifference to human life.¹⁶]

It is not a defense to this charge that the actor did not know that the deceased was less than eleven (11) years old, or that the actor believed that such deceased was eleven (11) years old or more on the date of the crime.¹⁷

In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case, beyond a reasonable doubt, each of the following four elements:

1. That on or about (date) , in the county of (county) , the defendant, (defendant's name) , caused the death of a person less than eleven (11) years old, namely, (specify) ;

2. That the defendant did so by recklessly engaging in conduct which created a grave risk of serious physical injury or death to (specify) ;

3. That the defendant engaged in such conduct under circumstances evincing a depraved indifference to human life; and

4. That, at such time, the defendant was eighteen (18) years old or more.

If you find the People have proven beyond a reasonable doubt each of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt any one or more of those elements, you must find the defendant not guilty of this crime.