Second-Degree Murder Defense in New York
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The Charge Every Homicide Case Starts With
Murder in the second degree, Penal Law 125.25, is the charge New York prosecutors bring in nearly every killing. It is a class A-I felony with a sentence of 15 to 25 years to life, it must be indicted by a grand jury, and it reaches far more than the deliberate killing most people picture: a reckless act the law calls depraved indifference, a death during a robbery or burglary that no one intended, and, in the youngest cases, a 13-year-old tried as an adult. The charge is broad on purpose, and the work of the defense is to hold the State to the specific subdivision it chose and the elements that subdivision requires.
Attorney Andrew DeLuca defends homicide cases in the county courts of Saratoga, Warren, Washington, Fulton, and Montgomery Counties, where he tried felony cases for five years as an Assistant Public Defender before founding his practice in 2010. A murder case is investigated, litigated, and tried differently from anything else on the docket, starting the day of the arrest.
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The Five Ways Murder in the Second Degree Is Charged
Penal Law 125.25 has five subdivisions. Every one is a class A-I felony, and the indictment names which one the State is relying on.
- Intentional murder (subdivision 1): with intent to cause the death of another person, causing that person’s death or a third person’s. Intent means a conscious objective. Two affirmative defenses reduce the charge without acquitting: extreme emotional disturbance, which reduces it to first-degree manslaughter, and causing or aiding a suicide without duress or deception, which reduces it to second-degree manslaughter.
- Depraved indifference murder (subdivision 2): under circumstances evincing a depraved indifference to human life, recklessly engaging in conduct that creates a grave risk of death and causing a death. The Court of Appeals has sharply limited this theory; see below.
- Felony murder (subdivision 3): a death of a non-participant caused by any participant during, or in immediate flight from, robbery, burglary, kidnapping, arson, first-degree rape, the offense formerly defined as criminal sexual act in the first degree, first-degree sexual abuse, aggravated sexual abuse, or first- or second-degree escape. Robbery, burglary, kidnapping, and arson are listed without a degree. No intent to kill is required, and a non-killing participant has a four-part affirmative defense.
- Depraved indifference killing of a child (subdivision 4): a defendant 18 or older who, with depraved indifference, recklessly creates a grave risk of serious physical injury or death to a child under 11 and causes the child’s death.
- Killing of a child during a sex offense (subdivision 5): a defendant 18 or older who intentionally kills a child under 14 in the course of listed rape, sexual abuse, or incest offenses. This is the one subdivision that carries mandatory life without parole.
Depraved Indifference After Feingold and Suarez
For years prosecutors charged intentional-looking killings as both intentional murder and depraved indifference murder, and juries convicted on the second theory when they could not agree the killing was intended. The Court of Appeals ended that practice. In People v. Suarez (2005) the court held that a one-on-one shooting or stabbing can almost never qualify as depraved indifference murder, that leaving a victim to die after an intentional wound does not convert it, and that single-victim depraved indifference is confined to rare patterns such as abandoning a helpless victim in circumstances where death is highly likely. In People v. Feingold (2006) the court held that depraved indifference is a culpable mental state, an utter disregard for the value of human life, not a description of the circumstances. New York’s pattern jury instruction now tells jurors that reckless conduct causing death, however grave the risk, is not enough.
The practical result is that a depraved indifference count in a typical homicide is vulnerable at every stage: before the grand jury, on a motion under CPL 210.20 to dismiss or reduce the count to the most serious offense the evidence actually supports, and at trial. Where the facts show recklessness rather than utter disregard, the correct charge is second-degree manslaughter, a class C felony with an indeterminate sentence of up to 15 years rather than life.
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Sentencing
Every class A-I felony carries a maximum of life. For murder in the second degree under subdivisions 1 through 4, the judge fixes a minimum between 15 and 25 years under Penal Law 70.00(3)(a)(i), and release after the minimum is at the discretion of the Board of Parole. Life without parole is mandatory under subdivision 5 and is otherwise a first-degree murder sentence, where it is discretionary alongside a 20-to-25-year minimum. A defendant 17 or younger at the time of the crime may not receive life without parole. The second felony offender and persistent violent felony offender enhancements do not apply to an A-I conviction; a prior murder conviction is instead one of the aggravators that turns a later intentional killing into first-degree murder.
The lesser homicides matter because most murder cases that resolve short of trial resolve to one of them. First-degree manslaughter (Penal Law 125.20), an intentional killing under extreme emotional disturbance or a death caused with intent to cause serious physical injury, is a class B violent felony with a determinate sentence of 5 to 25 years. Second-degree manslaughter (125.15), recklessly causing a death, is a class C felony that is not a violent felony, with an indeterminate sentence of up to 15 years. Criminally negligent homicide (125.10) is a class E felony with a maximum of 4 years, or a definite sentence of a year or less. Attempted second-degree murder is itself a class B violent felony.
Defenses
- Justification. Under Penal Law 35.15, deadly physical force is justified against what a person reasonably believes is the use or imminent use of deadly physical force, or a kidnapping, forcible rape, forcible aggravated sexual abuse, or robbery, or, under 35.20, a burglary of a dwelling or occupied building by someone lawfully there. New York requires retreat when the person knows they can retreat with complete safety, except in their own dwelling when they were not the initial aggressor. Once raised, the State must disprove justification beyond a reasonable doubt.
- Extreme emotional disturbance. An affirmative defense to intentional murder, proven by the defendant by a preponderance, that reduces the conviction to first-degree manslaughter. It is judged from the viewpoint of a person in the defendant’s situation under the circumstances as they believed them to be.
- Intent and identity. The State must prove the killing was intended, or depraved, or occurred during a listed felony, and that the defendant did it. Forensic evidence, cause-of-death testimony, video, cell site records, and the reliability of witnesses are where these cases are actually fought.
- Intoxication. Not a defense in itself, but under Penal Law 15.25 evidence of intoxication can be offered to negate intent. It cannot negate recklessness, and whether it can negate depraved indifference is unsettled among the appellate departments.
- The felony murder affirmative defense. A participant who did not do the killing, was not armed, and had no reasonable ground to believe a co-participant was armed or intended deadly conduct has a complete affirmative defense to the murder count, though not to the underlying felony.
How a Murder Case Moves Through the Courts
A murder charge is arraigned on a felony complaint in the local court or centralized arraignment part, where the only question is whether the defendant will be held for grand jury action. Murder is a qualifying offense under CPL 510.10, so the court may set bail, impose conditions, or remand. The defendant has a right to a prompt felony hearing at which only non-hearsay evidence counts, though it is usually waived in favor of grand jury practice. Unlike most felonies, a class A felony punishable by life cannot proceed by waiver of indictment; a grand jury must indict. After indictment the case is arraigned in county court, and a motion under CPL 210.20 can dismiss any count the grand jury evidence did not support or reduce it to the most serious lesser-included offense it did. Youthful offender treatment is not available for a class A-I felony conviction.
For the youngest defendants the rules are their own. A 13-year-old can be prosecuted as a juvenile offender only for intentional or depraved indifference murder, and a 14- or 15-year-old for those and for felony murder where they are responsible for the underlying felony; the juvenile offender sentence for murder carries a life maximum with a minimum of 7½ to 15 years for a 14- or 15-year-old under subdivisions 1 or 2. A 16- or 17-year-old adolescent offender charged with murder is not automatically removed to Family Court under Raise the Age; the Youth Part holds a review within six days at which the District Attorney must prove one of the listed factors, such as significant physical injury or display of a weapon, to keep the case in the Youth Part.
Homicide Cases in Saratoga County and the Capital Region
Murder cases in this region are prosecuted in Saratoga County Court in Ballston Spa, Warren County Court in Lake George, Montgomery County Court in Fonda, and the county courts in Fort Edward and Johnstown, after arraignment in the local courts and a grand jury presentation by the county District Attorney. Related pages: First-Degree Murder, Criminally Negligent Homicide, Vehicular Assault and Vehicular Manslaughter, Assault, Felony Defense, and What Happens After an Arrest.
Frequently Asked Questions
Second-Degree Murder Questions
In a homicide investigation the first statement, the first search, and the first days of evidence collection shape everything after. Do not speak to investigators without counsel. Call 518-245-9109.
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