Defendant Angelo was charged with second degree murder (depraved indifference murder) and assault, and at trial, he didn't deny that while employed as a nurse, he caused the deaths of six patients by the unauthorized injection of neuromuscular blocking agents, which led to respiratory failure. Angelo's defense was that he suffered from a mental illness such that he was unable to formulate the state of mind to appreciate the grave risk of death to the patients, thus negating the mental state required for depraved indifference. He presented two psychological experts who testified that he suffered from a Dissociative Disorder, which prevented him from recognizing the risks associated with his conduct. Before one expert testified, the defense unsuccessfully sought a ruling allowing him to testify that his opinion on the defendant's mental state was based, in part, on the results of his polygraph examination, claiming it was relevant to the diagnosis. Defendant was ultimately convicted of depraved indifference murder, and the Appellate Division affirmed.
Held: The conviction and sentence were affirmed. While CPL 60.55 does state that a mental health expert "must be permitted to make a statement as to the nature of any examination of the defendant," the statute only applies to' a defendant asserting the insanity defense; the defendant here sought instead to use psychiatric testimony to negate a necessary element of the offense charged. Nor can the testimony be allowed under the common law rule, which sometimes allows an expert to base his opinion on out-of-court evidence. As stated in People v. Sugden, 35 N.Y.2d 453, an expert witness may rely on non-record evidence only if it is of the kind acceptable as reliable in the profession, and the defendant did not demonstrate that polygraph test results are generally accepted by the scientific community as reliable.
 | Michael Welner, M.D. Chairman The Forensic Panel |
Dr. Welner comments: In this case, the defendant sought to introduce evidence to demonstrate that he suffered from a mental illness that precluded him from "forming the required mental state." Neither the Court nor the prosecutor apparently objected to the defense attempt to negate depraved indifference by making mental state an issue. Yet, in New York, Depraved Indifference has been consistently held to be a product of actions and, objective circumstances, not a mental state. For example, in People v. Roe 72 N.Y.2d 20, the court upheld the guilty verdict of a fifteen year old convicted of depraved indifference murder in a setting of careless handling of a gun he was pointing at his friend. The court distinguished depraved indifference murder as placing the victim at grave risk for death, while in manslaughter the victim was at merely a substantial risk of death. The court followed circumstances, not a mental state, as the criteria for determining what created a greater risk of death. Within such a framework, a court would not be inclined to consider any evidence on the question of whether the defendant was able to form the required mental state.
The idea that depraved indifference does not represent, at least in some form, a more blameworthy mental state, has been criticized as counterintuitive. (For an excellent review of this topic, see article by Abraham Abramovsky, NYU, 12/27/95, p.3). Indeed, since we do consider mitigating emotions and states of mind, should we not also factor in the cruelty that motivates a desire to create a grave risk to human life? A person acting with such cruelty may even enjoy that he created a grave risk to human life. As the law of depraved indifference evolves, it may allow into the fact finding process psychiatric testimony that a defendant is actually more blameworthy based on his mental state.
