It is now black-letter law in New York that depraved indifference murder cannot apply to a one-on-killing ... unless the victim was particularly vulnerable and the murder itself was brutal. In People v. McLain (3d Dept. 1/20/2011) (Spain, J.), the Defendant was accused of murdering her 2-year-old son. The victim had numerous, severe bruises and traumatic brain injuries that left him comatose. The defense was that her boyfriend was the one who inflicted the injuries. The jury rejected this claim and the Third Department found that there was ample evidence that she, not her boyfriend, caused the injuries.
The Third Department also found that the Defendant's conduct met the definition of depraved indifference. "[T]he cause of death was the blunt force injuries caused by an estimated 10 or more blows to the head." Moreover, the child had fresh bruises all over his body, including his head, and he had retinal hemorrhaging, a rib fracture, and a damaged lung. This medical evidence demonstrated that the Defendant acted with "uncommon brutality" against a particularly vulnerable victim. (LC)