The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.