People v. Dubarry, No. 32 (N.Y. Apr. 7, 2015).
Under the doctrine of “transferred intent,” a criminal defendant who intends to harm one person but inadvertently harms a second person is treated as if he actually intended to harm the second. This case involves a question of transferred intent.
The criminal defendant here, Darius Dubarry, got into a shoot-out with Herburtho Benjamin. Though Dubarry intended to shoot Benjamin, one of his bullets struck and killed an innocent bystander.
Dubarry was then charged with—and convicted of—two different crimes: intentional murder and depraved-indifference murder. As the name suggests, intentional murder requires intent to kill. Depraved-indifference murder, by contrast, requires only that the defendant have acted with conscious disregard of a substantial and unjustifiable risk that death will occur.
The law in New York is that, if you kill somebody, you can’t be convicted of both intentional murder and depraved-indifference murder. The logic here is that intentional murder requires an intentional act, while a conviction for depraved-indifference murder necessarily means that the defendant didn’t intend the death; he was just reckless.
The prosecution, though, says that this usual rule doesn’t bar Dubarry’s conviction for both kinds of murder. Dubarry intended to kill Benjamin, not the innocent bystander. It’s only under the transferred-intent theory that Dubarry can be found guilty of intending to kill the bystander. As a matter of actual fact, Dubarry was merely reckless as to the bystander. That’s why it’s not illogical to convict Dubarry of both intentional and depraved-indifference murder. Such, at least, is the prosecution’s argument.
The New York Court of Appeals says that the prosecution is missing the point. The whole point of the transferred-intent theory is that Dubarry is treated as if he had intended the death of the innocent bystander. And the underlying purpose of that legal fiction is not to increase criminal liability—which, in the court’s eyes, is what the prosecution is really asking for—but to save an otherwise doomed prosecution for intentional murder. So Dubarry’s convictions must be reversed, and on retrial the jury must be instructed that it can convict Dubarry of either intentional murder or depraved-indifference murder, but not both.
UPDATE: The New York Daily News describes some of the factual background to this case.