## Facts

- Three defendants engaged in a daytime gun battle on a pedestrian thoroughfare within a Brooklyn public housing development.
- A public school principal, a bystander in the area, was struck in the chest by a stray nine-millimeter bullet and died.
- Ballistics evidence could not determine which defendant fired the fatal shot; the fatal bullet could have come from any of the firearms used.
- Evidence showed each defendant armed himself and voluntarily participated in exchanging gunfire in a location where pedestrians were present.
- The prosecution proceeded on a theory that each defendant acted with the mental state for depraved-indifference murder and intentionally aided the shooter.

## Issues

1. Whether evidence was legally sufficient to prove depraved-indifference murder when the prosecution could not identify which defendant fired the fatal bullet.
2. Whether adversaries in a mutual gun battle can share the “community of purpose” required for accomplice liability under Penal Law § 20.00 for depraved-indifference murder.

## Decision

- The court affirmed the convictions for second-degree depraved-indifference murder.
- It held the prosecution need not prove which defendant fired the fatal shot if the evidence permitted a rational jury to find each defendant had the required culpability and intentionally aided the conduct that caused the death.
- It held that adversaries who intentionally aid and encourage each other to engage in mutual gunfire in a public place can share a sufficient community of purpose for accomplice liability.

## Legal Principles

- Depraved-indifference murder requires proof that, under circumstances evincing depraved indifference to human life, the defendant recklessly engaged in conduct creating a grave risk of death and thereby caused a death.
- Recklessness requires awareness and conscious disregard of a substantial and unjustifiable risk, constituting a gross deviation from reasonable conduct.
- Exchanging gunfire in a public, populated area can constitute depraved indifference because it creates a grave risk of death to bystanders.
- Accomplice liability attaches where a defendant acts with the mental culpability required for the offense and intentionally aids another to engage in the conduct constituting the offense; a shared criminal purpose may exist even among opposing participants in mutual combat when their combined conduct creates the lethal risk.

## Conclusion

By voluntarily engaging in a public shootout that created a grave risk to bystanders, each defendant could be found guilty of depraved-indifference murder, and accomplice liability could apply despite their adversarial relationship and the inability to identify whose bullet caused the death.


People v. Russell, 91 N.Y.2d 280 (N.Y. 1998)