Second Circuit — Depraved Indifference: Parker v. Ercole

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U.S. Court of Appeals for the Second Circuit

Depraved Indifference

Sufficiency of Evidence — Ineffective Assistance

Parker v. Ercole
10-2510-cv
Judges Kearse, McLaughlin and Cabranes

Background: The plaintiff, an inmate in the custody of the New York Department of Correctional Services, was convicted of second-degree murder. He appealed the denial of his petition for a writ of habeas corpus. He argued that his counsel was ineffective as a result of failing to preserve his claim that there was insufficient evidence to convict him of depraved-indifference murder and that the evidence was insufficient to support a conviction for depraved-indifference murder.

Ruling: The Second Circuit found that the evidence was sufficient to support the plaintiff’s conviction for depraved-indifference murder and that his counsel was not constitutionally defective for failing to preserve the claim. The evidence adduced at trial established that after a night of drinking, the plaintiff got into a fight with the victim. Witnesses heard the shot of a single rifle coming from a residence where the plaintiff had entered.  The shot went into a crowd of people where the victim was standing, hitting the victim. With respect to the ineffective assistance claim, the court found that there was no reasonable probability that, but for his counsel’s failure to preserve the sufficiency claim, the result of the plaintiff’s trial would have been different.

Julia Pamela Heit for the petitioner-appellant; Lisa Ellen Fleischmann of the New York State Office of the Attorney General for the respondent-appellee