People v. Atkinson, 853 N.E.2d 227 (NY 2006). · Go Syfert
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People v. Atkinson, 853 N.E.2d 227 (NY 2006). Cases Citing This Book View Copy Cite
92 citation events (92 in the last 25 years) across 5 distinct courts.
Strongest positive: People v. Jones (nyappdiv, 2012-11-09)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Jones (2×) also: Cited "see"
N.Y. App. Div. · 2012 · confidence medium
Thus, because the evidence supports the conclusion that “defendant’s actions, although not depraved, were reckless” (People v Atkinson, 7 NY3d 765, 767 [2006]), “reducing the depraved indifference murder conviction to manslaughter in the second degree is appropriate” (Bussey, 19 NY3d at 236 ; see Atkinson, 7 NY3d at 766-767 ; People v Little, 83 AD3d 1389, 1392 [2011]; see also CPL 470.15 [2] [a]).
discussed Cited as authority (rule) People v. Jones (2×) also: Cited "see"
N.Y. App. Div. · 2012 · confidence medium
Thus, because the evidence supports the conclusion that “defendant’s actions, although not depraved, were reckless” (People v Atkinson, 7 NY3d 765, 767 [2006]), “reducing the depraved indifference murder conviction to manslaughter in the second degree is appropriate” (Bussey, 19 NY3d at 236 ; see Atkinson, 7 NY3d at 766-767 ; People v Little, 83 AD3d 1389, 1392 [2011]; see also CPL 470.15 [2] [a]).
discussed Cited as authority (rule) People v. Bussey
NY · 2012 · confidence medium
Because the evidence supports the conclusion that defendant was aware of and consciously disregarded the substantial and unjustified risk that his conduct could cause the death of the victim, reducing the depraved indifference murder conviction to manslaughter in the second degree is appropriate (see also People v Atkinson, 7 NY3d 765, 766-767 [2006]).
discussed Cited as authority (rule) People v. Heidgen
N.Y. App. Div. · 2011 · confidence medium
In People v Walton, we recognized that an intoxication defense can mitigate depraved indifference murder to the lesser offense of reckless manslaughter (see People v Walton, 70 AD3d at 874 , citing People v Harris, 98 NY2d at 475 ; People v Atkinson, 7 NY3d 765, 766 [2006]; People v Jean-Baptiste, 44 AD3d 792, 793 [2007], affd 11 NY3d 539 [2008]; People v McPherson, 35 AD3d 765, 766 [2006]).
discussed Cited as authority (rule) People v. Baker
NY · 2010 · confidence medium
We have held that manslaughter in the second degree is a lesser-included offense of depraved indifference murder under Penal Law § 125.25 (2) (see People v Atkinson, 7 NY3d 765, 766-767 [2006]), but we have not examined whether that also applies to depraved indifference murder of a child under subdivision (4) of section 125.25.
cited Cited as authority (rule) People v. Walton
N.Y. App. Div. · 2010 · confidence medium
People v Atkinson, 7 NY3d 765, 766 [2006]; People v Jean-Baptiste, 44 AD3d 792, 793 [2007]; People v McPherson, 35 AD3d 765, 766 [2006]).
discussed Cited as authority (rule) People v. Wright
N.Y. App. Div. · 2009 · confidence medium
We nevertheless conclude that the evidence is legally sufficient to support the lesser included offense of manslaughter in the second degree (Penal Law § 125.15 [1]; see Jean-Baptiste, 11 NY3d at 544 ; People v George, 11 NY3d 848, 850 [2008]; People v Atkinson, 7 NY3d 765, 766-767 [2006]).
discussed Cited as authority (rule) People v. Heslop
N.Y. App. Div. · 2007 · confidence medium
People v Atkinson, 7 NY3d 765, 766-767 [2006]; People v Smothers, 41 AD3d 1271, 1272 [2007], lv denied 9 NY3d 964 [2007]; People v DeCapua, 37 AD3d 1189, 1190 [2007], lv denied 8 NY3d 983 [2007]; People v McPherson, 35 AD3d 765, 766 [2006]; People v McMillon, 31 AD3d 136, 139-140 [2006], lv denied 7 NY3d 815 [2006]).
discussed Cited as authority (rule) People v. George
N.Y. App. Div. · 2007 · confidence medium
We are, however, empowered to reduce the conviction to the lesser included offense of manslaughter in the second degree (see e.g. id.-, People v Atkinson, 7 NY3d 765, 766 [2006], supra-, People v McMillon, 31 AD3d 136, 142 [2006], lv denied 7 NY3d 815 [2006]).
cited Cited as authority (rule) People v. Ziminski
N.Y. App. Div. · 2006 · confidence medium
Simply put, the “[defendant did not commit depraved indifference murder within the meaning of the statute” (People v Atkinson, 7 NY3d 765, 766 [2006]).
discussed Cited "see" People v. Mighty
N.Y. App. Div. · 2022 · signal: see · confidence high
Although defendant failed to preserve that contention for our review because his motion for a trial order of dismissal was not " 'specifically directed' at" the alleged error now raised on appeal ( People v Gray , 86 NY2d 10, 19 [1995]; see People v Jacobs , 195 AD3d 1434 , 1435 [4th Dept 2021]), we nevertheless exercise our power to review his contention as a matter of discretion in the interest of justice, particularly in view of the People's concession ( see People v Woods , 26 AD3d 818 , 819 [4th Dept 2006], lv denied 7 NY3d 765 [2006]; People v Butler , 273 AD2d 613, 614 [3d Dept 2000], l…
discussed Cited "see" JONES, ALAN L., PEOPLE v
N.Y. App. Div. · 2012 · signal: see · confidence high
Thus, because the evidence supports the conclusion that “defendant’s actions, although not depraved, were reckless” (People v Atkinson, 7 NY3d 765, 767 ), “reducing the depraved indifference murder conviction to manslaughter in the second degree is appropriate” (Bussey, 19 NY3d at 236 ; see Atkinson, 7 NY3d at 766-767 ; People v Little, 83 AD3d 1389, 1392 ; see also CPL 470.15 [2] [a]).
discussed Cited "see" People v. Baptiste (2×) also: Cited "see, e.g."
N.Y. App. Div. · 2008 · signal: see · confidence high
Edelstein, In Search of the Point of No Return: Policano v. Herbert and the Retroactivity of New York’s Recent Depraved Indifference Murder Jurisprudence, 57 Syracuse L Rev 973, 993 [2007]; see People v Atkinson, 21 AD3d 145, 157 [2005], mod 7 NY3d 765 [2006]).
discussed Cited "see" People v. Francis
N.Y. App. Div. · 2006 · signal: see · confidence high
The evidence was legally sufficient, however, to establish the lesser-included offense of manslaughter in the second degree (Penal Law § 125.15 [1]; see People v Atkinson, 7 NY3d 765, 766-767 [2006]; People v McMillon, supra).
discussed Cited "see, e.g." People v. Waldron
N.Y. Sup. Ct. · 2007 · signal: see also · confidence low
(People v Payne, 3 NY3d 266 [2004]; see also, People v Atkinson, 7 NY3d 765 [2006] [where defendant shot victim in neck from distance of four to five feet, defendant’s conviction of depraved indifference murder reduced to manslaughter in the second degree; defendant’s actions, although not depraved, were reckless]); • Stabbing the victim three times (in the throat, chest and abdomen) and leaving her to bleed to death did not, as a matter of law, constitute depraved indifference murder.
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Tyrone Atkinson, Appellant
New York Court of Appeals.
Jul 5, 2006.
853 N.E.2d 227
APPEARANCES OF COUNSEL, Lynn W.L. Fahey, New York City, and Melissa S. Horlick, for appellant., Richard A. Brown, District Attorney, Kew Gardens {John M. Castellano and Roni Piplani of counsel), for respondent.
Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith Concur Judge Graffeo Concurs in Result on Constraint Of.
Cited by 76 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reducing defendant’s conviction of depraved indifference murder (Penal Law § 125.25 [2]) to manslaughter in the second degree (Penal Law § 125.15 [1]), and by remitting the case to Supreme Court for resentencing and, as so modified, affirmed. Defendant did not commit depraved indifference murder within the meaning of the statute (see People v Payne, 3 NY3d 266 [2004]).

We reject the contention that defendant forfeited his right to challenge the sufficiency of his conviction for depraved indifference murder by requesting that the jury be charged on the lesser-included offense of manslaughter in the second degree, which requires a finding of recklessness. “Depraved indifference” is an additional core statutory requirement of depraved indifference murder, beyond mere recklessness and risk (see People v Suarez, 6 NY3d 202, 214-215 [2005]).

In our corrective action here, however, dismissal of the indictment is neither required nor warranted. The facts are suf[*767] ficiently different from Payne to enable a jury to reasonably conclude that defendant’s actions, although not depraved, were reckless. Among other evidence, testimony at trial could have led a rational jury to infer that the victim moved into a shot that was intended only to scare him.

Accordingly, we need not reach the question of whether by requesting the lesser-included charge of manslaughter in the second degree, defendant forfeited his present claim that the evidence is consistent only with intentional murder.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur; Judge Graffeo concurs in result on constraint of People v Suarez (6 NY3d 202 [2005]).

Order modified by reducing defendant’s conviction of murder in the second degree to manslaughter in the second degree and remitting to Supreme Court, Queens County, for resentencing and, as so modified, affirmed, in a memorandum.