Supreme Court, Appellate Division Upholds Depraved Indifference Murder Conviction Stemming From Car Accident

Earlier this month, a Brooklyn appellate panel upheld the murder conviction of Franklin McPherson. McPherson was convicted of second degree murder after driving the wrong way for approximately five miles on the Southern State Parkway in October of 2007, eventually striking another car and killing its driver. Defense counsel argued that because McPherson had been drinking, and in fact had a blood alcohol content of 0.19%, he therefore lacked the mental capacity to prove “depraved indifference.” The trial court disagreed, and its decision was upheld on November 1, 2011 by the Appellate Division.

The New York Penal Code states that “A person is guilty of murder in the second degree when: (2) Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” The court ruled that McPherson “deliberately and purposefully proceeded the wrong way down a parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences.” The court did not find his drunkenness a mitigating factor. Murder in the second degree is a class A-1 felony.

Read the Court’s full decision here.

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