COUNTY COURT STATE OF NEW YORK : COUNTY OF ULSTER Carag THE PEOPLE OF THE STATE OF NEW YORK DECISION and ORDER -against- Ind. No. 70235-21 DEFENDANT'S OMNIBUS CHRISTOPHER BALDNER, MOTION Defendant. Appearances: For The People: New York State Attorney General Letitia James By, AAG Jennifer Gashi; AAG Paul Clyne For Defendant: John Ingrassia, Esq., Anthony Ricco, Esq., Michael Bongiomo, Esq., Stephen Coffey, Esq. i FILED By, John Ingrassia, Esq. HED ow Fully Submitted: — December 6, 2022 FEB 02 2023 lina Postupack Rounds, J. Ustr ‘County Glerk MOTION PAPERS CONSIDERED Pending before this Court is defendant’s motion to dismiss the indictment. The Court has reviewed and considered the following: Defendant's Notice of Motion to Dismiss the Indictment, Affirmation, Omnibus Motion with exhibits, and separate Memorandum of Law of John Ingrassia, Esq., dated February 16, 2022, and March 4, 2022; the People’s Affirmation in Opposition of Assistant Attorney General Paul Clyne, dated March 11, 2022; Defendant's Affirmation in Reply of John Ingrassia, Esq., dated March 24, 2022, and the People’s Sur-Response of Assistant Attorney General PaulClyne, dated March 29, 2022. Additionally, both the People and defendant have submitted letter memoranda in consideration of the recent Appellate Division for the Thitd Department decision in People v Ryan B. Williams (206 AD3d 1282 [3d Dept 2022}). As well, from the hearing conducted November 18, 2022, the People and defendant have submitted separate memoranda of law, dated December 6, 2022. RELIEF SOUGHT BY DEFENDANT AND PEOPLE’S RESPONSE By the fore listed applications, defendant chiefly seeks relief in the form of a dismissal of the indictment, premised upon his claim the Grand Jury proceedings were defective. In that regard, defendant contends that the People’s fact witnesses and vehicle data analysis expert improperly expressed conclusions as to defendant’s mental state. He further asserts the evidence presented was insufficient to establish a prima facie case in support of all alleged counts. To that claim, defendant asserts that count one and counts three through eight are unsupported, as the evidence presented to the Grand Jury failed to establish that defendant acted on both December 22, 2020, and September 6, 2019, with the requisite depraved indifference to human life. Additionally, defendant contends that the second count of Manslaughter in the Second Degree is improperly charged, as defendant’s actions were undertaken while in performance of his lawful duties as a New York State Trooper. As well, defendant seeks dismissal of counts four, five, seven and eight as duplicitous (CPL 200.30). Alternatively, defendant seeks a bill of particulars (CPL 200.95), inspection of the Grand Jury minutes (CPL 210.30[2]), and severance of counts one through five fromcounts six through eight (CPL 200.20[3)).! As well, defendant requests this Court’s order requiring the People’s further compliance with the holdings of Brady v Maryland (373 US 83 [1963]) and Giglio v United States (405 US 150 [1972]). Defendant also seeks this Court’s order mandating the People’s further disclosure of relevant police dis iplinary records under CPL Art. 245, and a hearing pursuant to People v Geaslen (54 NY2d 510 [1981]). As for the People’s response, they recount the facts, time, people and places as alleged by the indictment for the purposes of reciting a bill of particulars. The People further declare theit recognition of their responsibilities under Brady and Giglio, but also ‘oppose any hearings in accordance with Geaslen that may conflict with their application for, and this Court's issuance of, a protective order pursuant to CPL 245.70. The People otherwise oppose defendant's application in its entirety. FACTUAL SYNOPSI This matter arises from the events of December 22, 2020, and those of September 6, 2019. On those dates and the intervening periods, defendant, a New York State ‘Trooper, was assigned to Troop T, the unit responsible for patrol of the New York State Thruway. On December 22, 2020, at approximately 11:40 p.m., at or near mile marker * Defendant has withdravn his requests for preclusion of any un-noticed statements (CPL 710,30f fal; 710.30(2D. ‘As wel, hearings were held October 24, 2022, in accordance with People v Huntley (1S NY24 72 (1965)) to gauge the admissibility of any statements. Hearings were also conducted that date pursuant to People v Sandoval, 34 NY2d 371 [1974] and People v Ventimiglia (52 NV2d 350 [1981)), to determine the scope and admissibility of any uncharged bad acts on defendant’s part. The Court's Decision and Order from those hearings, and from the People’s application filed pursuant to Sandoval and Molineux! Ventimiglia, of AAG Paul Clyne, dated August 8, 2022, andl Defendant's Affirmation in Response and Memorandum of Law of John Ingrassia, Esq, dated August 22, 2022, was rendered by a companion Decision and Order of December 20, 2022.92, in the Town of Ulster, Ulster County, New York, defendant initiated a car stop of a 2017 Dodge Journey operated by Mr. Tristan Goods. The stop was predicated upon a suspected violation of VTL § 1180, Speed in Zone. Also inside the Dodge Journey with Mr. Goods were his wife April Goods and two daughters Tristina and Monica Goods. At some point, the initial roadside interview turned confrontational, and defendant deployed his police issued pepper spray. From the available facts, Tristan Goods then raised the driver’s side window, and the pepper spray dispenser was then either grabbed by Mr. Goods or dropped into the stopped vehicle by defendant. Mr. Goods then sped off. A high-speed chase ensued that lasted approximately one mile and where speeds reached near and above 120 mph. During the pursuit, defendant is alleged to have rammed the Dodge Journey twice; the second impact having caused the Dodge Journey to go off the roadway, roll two times and come to a stop in the highway median. During the roll over, Monica Goods was partially ejected from the Dodge Journey and killed. As for the events of September 6, 2019, defendant is alleged, at or about 7:45 a.m., at or near mile marker 93 in the Town of Ulster, Ulster County, New York, to have intentionally rammed a 2018 Dodge Caravan that was operated by Mr. John Muthu. The second incident also followed a suspected violation of VIL § 1180. Within Mr. Muthu’s vehicle were a Michael Molina and Kelsi Sanchez. Following the events of December 22, 2020, the New York State Attorney General initiated an investigation of defendant’s actions. That investigation culminated with the instant indictment,PROCEDURAL HISTORY By Ulster County Indictment 70235-21 (sealed), filed October 26, 2021, defendant Christopher Baldner was charged with eight counts in total. From the events of December 20, 2020, defendant was accused of one count of Murder in the Second Degree-Depraved Indifference to Human Life (Penal Law § 125.25[2]), a Class A-I Felony, one count of Manslaughter in the Second Degree (Penal Law § 125.15[1]), a Class C Felony, and three counts of Reckless Endangerment In the First Degree- Depraved Indifference to Human Life (Penal Law § 120.25), a Class D felony (counts ‘one through five). As alleged from the events of September 6, 2019, the People charged three additional counts of Reckless Endangerment in the First Degree-Depraved Indifference to Human Life (Penal Law § 120.25) (counts six through eight). On October 27, 2021, defendant was arraigned with counsel before this Court and pleaded not guilty to all charges. This Court remanded defendant, without bail, pending determination of the matter. By writ of habeas corpus, dated November 16, 2021, filed with the Albany County State Supreme Court (Hartman, JSC acting), defendant sought relief in the form of release or fixing of bail. On November 22, 2021, the reviewing court set bail at $100,000.00 cash, $300,000.00 bond, and $450,000.00 partially secured bond with 10% deposit. In accord with the agreed-to release conditions, defendant also executed a waiver of his right to extradition. Now, upon the motion papers enumerated above, the Court determines the following:ANALYSIS To begin, defendant seeks dismissal of the indictment. Any analysis thus commences with consideration of what constitutes a valid indictment. Accordingly, CPL 190.65(1) defines the basis of an indictment and its attendant charges: A Grand Jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense provided, however, such evidence is not legally sufficient when corroboration that would be required, a8 a matter of law, to sustain a conviction for such offense is absent, and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense In sum, CPL, 190.65’s first prong requires that the People present a prima facie case based upon legally sufficient evidence. Under CPL 70.10(1), legally sufficient evidence is that competent evidence which, if accepted as true, establishes every element ofan offense charged. The statute’s second prong dictates that the applicable degree of certitude grand jurors must possess to indict is reasonable cause, and not beyond a reasonable doubt (see People v Mills, | NY3d 269, 274-75 [2003]). In consideration of these principles, CPL 210.20 and CPL 210.35 spell out the proper basis for a reviewing court’s dismissal of an indictment or its counts: (1) After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: (a) Such indictment or count is defective, within the meaning of section 210.25; or (b) The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense; or (c) The grand jury proceeding was defective, within the meaning of section 210.35; or (d) The defendant has immunity with respect to the offense charged, pursuant to section 50.20 or 190.40; or (e) The prosecution isbarred by reason of a previous prosecution, pursuant to section 40.20; or (f) The prosecution is untimely, pursuant to section 30.10; or (g) The defendant has been denied the right toa speedy trial; or (h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged; or (i) Dismissal is required in the interest of justice, pursuant to section 210.40. (CPL 210.20{1]) A grand jury proceeding is defective within the meaning of paragraph (c) of subdivision one of section 210.20 when: (1) ‘The grand jury was illegally constituted; or (2) The proceeding is conducted before fewer than sixteen grand jurors; or (3) Fewer than twelve grand jurors concur in the finding of the indictment; or (4) The defendant is not accorded an opportunity to appear and testify before the grand jury in accordance with the provisions of section 190.50; or (5) The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result, (CPL 210.35) Under CPL 210.20(1), this Court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether “the Grand Jury could rationally have drawn the guilty inference.” (People v Bello, 92 NY2d 523, 526 [1998] quoting People v Deegan, 69 NY2d 976, 979 [1987]; see also People v Jennings, 69 NY2d 103, 114 [1986] [Grand Jury may not indict unless the People present evidence establishing a prima facie case of criminal conduct]). Importantly, when considering a motion to dismiss brought pursuant to CPL 210.20, this Court’s inquiry is restricted to only that evidence put before the Grand Jury (see People v Garson, 6 NY3d 604, 613 [2006}). And that presented evidence must be of the fore-noted legal sufficiency in support of the prima facie case for all elements of the charge (see People v Colon, 15 AD3d 777, 779[3d Dept 2005). Further, this Court’s standard of review upon a claim of insufficient evidence before a Grand Jury is “whether the evidence viewed in a light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury.” (People v Grant, 17 NY3d 613, 616 [2011], quoting Bello, 92 NY2d at 526, internal quotation omitted). Under CPL 210.35, dismissal of an indictment or its individual counts turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment (see People v Huston, 88 NY2d 400, 409 [1996]). Relief pursuant to CPL 210.35 is, however, considered an exceptional remedy (see People v Watson, 183 AD3d 1191, 1193 [3d Dept 2020], Iv to appeal denied, 35 NY3d 1049 [2020]). Furthermore, “a prosecutor is not obligated to present the evidence or make statements to the grand jurors in the manner most favorable to the defense.” (People v Thompson, 2 NY3d 687, 698 [2014]). And even where “inadmissible evidence is presented to a grand jury, such presentation will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment.” (People v Sutherland, 104 ADS3d 1064, 1066-1067 [3d Dept 2013] citations omitted). And in accord with this law, where there is a challenge to the sufficiency of the evidence put before the Grand Jury, or there is the assertion that the proceeding was defective, initial review and inspection of the transcribed minutes rests within the authority of the trial court alone (CPL 210.30[2]; [3]; see Matter of Attorney Gen. of State of NY v Firetog, 94 NY 2d 477, 482 [2000)).Consequently, upon this Court’s review of those minutes and presented exhibits, we turn now to the indictment’s charges and the evidence in support of those charges. THE CHARGES With exception of the second count, defendant is alleged to have acted with a depraved indifference to human life, in both having recklessly engaged in conduct that caused the death of Monica Goods, and in having recklessly created a grave risk of death of Tristan Goods, April Goods, and Tristina Goods on December 22, 2022, and in having further recklessly created a grave risk of death of John Muthu, Michael Molina and Kelsi Sanchez, on September 6, 2019. ‘A person commits the crime of Murder in the Second Degree-Depraved Indifference, when, “[u}nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” The statute thus contains four essential elements: (1) A person acts with a depraved indifference relative to the facts and circumstances at hand, when; (2) while acting recklessly; (3) they ereate a grave risk of death; (4) and which culminates in the death of another (see Policano v Herbert, 7 NY3d 588, 596 [2006]. As appellate courts have declared, the critical element in depraved indifference murder is not recklessness, but depraved indifference (People v Hafeez, 100 NY2d 253, 260 [2003], Rosenblatt, J dissenting, holding abrogated by People v Feingold, 7 NY3d 288 [2006]). Moreover, a defendant’s “grave culpability” will satisfy the depravedindifference standard in only the rarest circumstances (see People v Maldonado, 24 NY3d 48, 53 [2014)). Also important for this analysis, as the Court of Appeals further held in People v Feingold (7 NY3d 288 [2006]), the term depraved indifference has the same meaning in both Murder in the Second Degree under Penal Law § 125.25(2) and Reckless Endangerment in the First Degree under Penal Law § 120.25 (Feingold at 290). ‘As such, Penal Law § 120.25 reads that: “[a] person is guilty of reckless endangerment in the first degree when, under circumstances evineing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.” Thus, Penal Law § 120.25 contains the same language and elements of Penal Law § 125.25(2), absent the causation of a death (see People v Lewie, 17 NY3d 348, 358 [2011]). Lastly, a person commits Manslaughter in the Second Degree (Penal Law § 125.15[1]), when he or she recklessly causes the death of another. THE ELEMENT OF RECKLESSNESS All eight indicted counts contain the clement of recklessness, which, in pertinent part, is defined by Penal Law § 15.05: A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.‘As further defined by case law, the conduct attendant to recklessness is “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” (People v Stan XuHui Li, 34 NY3d 357, 364 [2019] quoting People v Asaro, 21 NY3d 677, 685 [2013]). In sum, here the testimony and exhibits put before the Grand Jury here support reasonable cause to believe that defendant was aware of, and consciously disregarded substantial and unjustifiable risks.’ The facts, as alleged, are that defendant undertook unauthorized high-speed pursuits, and also initiated unsanctioned vehicle-to-vehicle contact at those high speeds, on both December 22, 2020, and September 6, 2019, And in both instances, the pursued vehicles contained multiple passengers whose safety was endangered. The evidence presented in support of these facts provided the Grand Jury with reasonable cause to believe defendant consciously disregarded clear risks in both instances, and also engaged in “blameworthy conduct that further contributed to those risks.” (Stan Xullui Li, 34 NY3d at 364). In both instances, the evidence before the Grand Jury rationally showed that defendant ignored ~ and created — multiple perils that presented, at a minimum, a grave risk of physical danger to Tristan, April and Tristina Goods, as well as to John Muthu, Michael Molina and Kelsi Sanchez. Accordingly, upon review of the proof before the Grand Jury, that evidence satisfied the element of recklessness on all counts. And in committing the evidenced behavior, that same proof also provided reasonable cause to believe that defendant caused the death of Monica Goods. Thus, all necessary elements of the indictment’s second count under Penal Law § 125.15(1) were satisfied. Defendant's argument that the secondcount is improperly charged because his actions were consistent with his duties as a police officer is without merit (see People v Colecchia, 251 AD2d 5, 6 [1st Dept 1998]). THE ELEMENT OF DEPRAVED INDIFFERENCE TO HUMAN LIFE To begin, if it must be shown that this defendant acted with a depraved indifference, then it must be shown that he acted with a wantonness and careless disregard that was akin to a desire to kill Monica Goods and the other vehicle occupants on both December 22, 2020, and September 6, 2019 (see Maldonado, 24 NY3d supra at 52). Accordingly, this Court turns now to how case law defines that “critical element” of depraved indifference to human life (see Hafeez, 100 NY2d supra at 260). In People v Feingold, supra, the Court of Appeals expressly overruled preceding, case law and held that depraved indifference is now defined as a culpable mental state (see Feingold, 7 NY3d at 294). And in doing so, the Court declared that the earlier objective circumstances standard of review for a depraved indifference charge no longer applied (see People v Register, 60 NY2d 270, 276 [1983], overruled by Feingold, holding modified by People v Suarez, 6 NY3d 202 [2005)). The Court of Appeals has also described the term depraved indifference to human life as that which reflects a wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies (Feingold at 293; People v Suarez, 6 NY3d at 213). The term has also been further narrowed to describe one whose actions are “so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious 12objective is to kill.” (People v Ryan B, Williams, 206 AD3d 1282, 1284 [3d Dept 2022]: quoting Suarez at 214, internal citation omitted). This line of cases has further expounded that because of the wanton nature of this mens rea, the term depraved indifference murder more “properly applies in only a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder.” (Maldonado at 53, quoting Suarez at 207). Some paradigmatic examples of what behavior constitutes a depraved indifference to human life include: firing a gun into a crowd; dropping a large stone from an overpass onto a busy highway; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; and opening a drawbridge as a train is about to pass over it (People v Heidgen, 22 NY3d 259, 276 [2013], quoting Suarez at 214, citations omitted). Importantly, those most recent appellate level cases that have examined Penal law § 125.25(2), and that involve high speed automobile chases almost exclusively concern intoxication or other suspected crimes (see People v Edwards, 36 NY3d 946 [2020]: Maldonado, 24 NY3d 48 supra; Heidgen, 22 NY3d 259 supra; People v Valencia, 14 NY3d 927 [2010]; Ryan B. Williams, 206 AD3d 1282, supra). In none of these matters were the defendants, as here, a police officer. Thus, this case, when compared to the pertinent case law, particularly demonstrates that matters that allege a depraved indifference to human life “are highly fact-specific and dependent upon the individual defendant’s particular mental state —a factor that may be extremely difficult to establish.” (Heidgen at 276). The most recent of these decisions is the Appellate Division ThirdDepartment’s in Ryan B. Williams (206 AD3d 1282), decided June 16, 2022.? In light of the Appellate Division’s holding, both the People and defendant have submitted letter memorandum analyses of Williams as supplements to their earlier filings. As well, the parties have provided memoranda of law following the fore-noted November 18, 2022, hearing. In both their letter of June 23, 2022, and memorandum of law of December 6, 2022, the People assert Ryan B, Williams’s holding inapplicable as authority here. The People stress that Williams concerned a post-trial weight of the evidence review (see People v Danielson, 9 NY3d 342 [2007)), rather than assessment of an indictment’s sufficiency. The People also emphasize the factual distinctions, in that Williams concemed an intoxicated fleeing suspect versus a sober pursuing officer. Importantly, though, this Court does not look to Williams because its procedural and factual settings seamlessly correspond to those in this matter: they surely do not. This Court looks to Williams because its analysis and holding further refine what actions evidence a depraved indifference to human life. Accordingly, this Court believes any further examination of what constitutes a depraved indifference to human life begins with the Appellate Division in Ryan B. Williams, and its case law hierarchy that examines what conduct does and does not satisfy the phrase’s meaning. ? The Court relies, in part, upon both People v Ryan B. Williams (206 AD3d 1282 [3d Dept 2022]) and People v Terrance Williams (111 AD3d 1435 [4th Dept 2013], affd, 24 NY3d 1129 [2015}). Where applicable, the cases are cited to by addition of the defendants first names.The defendant in Ryan B. Williams was, among other charges, convicted at trial under Penal Law § 125.25(2). The facts proven at that trial were that defendant fled from police following a traffic stop, where speeds reached above 120 mph, and which culminated in the death of one person and serious injuries to two others. And as here, the pursuit lasted less than three miles. In that regard, the facts of Williams, to a degree, align with those here. In reversing the conviction under Penal Law § 125.25(2), the Appellate Division held that no direct evidence presented at trial established defendant's mental state (id, at 1288). In Williams, the Court reasoned that proof of a knowing undertaking of risky behavior, and which creates dangers to others does not necessarily evince a depraved indifference (id, at 1287-1288 quoting Maldonado at 53). For the Court in Ryan B. Williams, the facts ran contrary to the conclusion that the defendant’s mental state was so wanton or morally deficient as to be tantamount to an intent to cause death. These facts included his avoidance of other vehicles (id.), that he drove on the shoulder at points during the pursuit (id.) and that the pursuit took place on a roadway designed for higher speeds (id. at 1287, citing People v Lazartes, 23 AD3d 400, 405 [2d Dept 2005]). As the Court reasoned in Williams, these facts negated the claim that the defendant possessed a mens rea comparable to a specific intent to cause death (id. at 1288-1289). As such, we consider the evidence put before the Grand Jury here. With regard to the events of December 20, 2020, a State Police supervisor described that neither pursuit, nor vehicle contact were authorized on that date, That first supervisor also testified that in the rarest of instances, though, vehicle-to-vehicle contact may be authorized. That same supervisor also confirmed that troopers are not trained in 15vehicle-to-vehicle contact. But notably, the People’s crash data analysis expert also testified that vehicle telemetry data showed that on December 20, 2020, defendant had applied a “hard-brake” in the moment after the first and just before the second impact. The People’s expert also described his understanding of what a “PIT maneuver” is — a term that describes a specific type of police-initiated vehicle-to-vehicle contact ploy — and in what instances it may be used. Relative to September 6, 2019, another State Police supervisor testified that a high-speed pursuit and vehicle-to-vehicle contact were also unauthorized in that incident. That second supervisor further described that the use of vehicle-to-vehicle contact to stop a pursued automobile, was, again, only permitted in the rarest of circumstances. That second supervisor also testified that the performance of the tactic is, however, described within State Police manuals. Other testimony related to September 6, 2019, detailed defendant's averments that he had initiated contact with Mr. Muthu’s vehicle as part of a PIT maneuver to bring the vehicle to a stop. These and other supporting facts, with the descriptions of defendant’s acti provided proof in support of all allegations of recklessness. ‘These facts, however, contradict the conclusion that the behavior was akin to having a desire to cause death (CPL 190.65[1]; Maldonado at 53; Feingold at 294; see Ryan B. Williams at 1288-1289; see also generally Grant, 17 NY3d supra at 616; Bello at 526 [a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury]). The evidence before the Grand Jury, even when viewed in a light most favorable to thePeople, was thus explained and contradicted relative to the element of depraved indifference to human life on the seven counts that contained the element. The descriptions put before the Grand Jury — that of the need for authorization to undertake a pursuit, to initiate vehicle-to-vehicle contact, and of the PIT or similar maneuvers being memorialized within police manuals ~ showed that, in certain instances the actions would be, albeit rarely, authorized and that performance of aspects of the alleged conduct was recorded within NYSP operational documents. As well, the evidence that defendant applied the brakes in an abrupt manner an instant before the second impact contradicts the conclusion he possessed either a desire to kill the ‘occupants “or that he was utterly indifferent to [their] fate.” (See Ryan B. Williams at 1288; see generally Terrance Williams, 24 NY3d 1129, 1132 [2015] [dismissal of indicted charge under Penal law § 125.25(2) affirmed where evidence before Grand Jury insufficient to show defendant acted with requisite wanton cruelty, brutality, or callousness for charge of depraved indifference murder]).3 Within their supplemental submission of December 6, 2022, the People emphasize that defendant collided with the Goods’s vehicle twice before the crash that resulted in Monica Goods death, and his primary actions at the scene ~ his attempts to effectuate an arrest rather than learn the condition of the vehicle occupants, and to then recover his pepper spray. The People assert these facts as dispositive of defendant’s grave culpability. The argument, however, is premised upon a pre-Feingold objective > The testimony of the People’s expert witness was that defendant applied a hard brake at that instant prior to the second impact and done as in an emergency.circumstances standard of what behavior constitutes a depraved indifference to human life. Such standard confines any analysis to “the factual setting in which the risk creating the conduct occurred.” (Register, 60 NY2d supra at 276). ‘Those factual settings d ibed before the Grand Jury here showed a defendant who ignored NYSP protocols but did so while undertaking actions memorialized within agency manuals, and who also applied the brakes just prior to a crash-resulting impact (see Ryan B. Williams at 1288). Evidence that this defendant acted in a complete disregard of established agency procedures does not, however, describe a wantonness commensurate with a desire to cause death (see Ryan B. Williams at 1288; see also People v Prindle, 16 NY3d 768, 770 [2011] [conviction under Penal Law § 125.25(2) reversed where “at most, the evidence adduced was legally sufficient to support a finding of reckless manslaughter.”]). And were this Court to focus solely on defendant's lack of care for the safety of others, upon these facts, it was not shown that the lack of concer elevated his conduct to that of a depraved indifference to human life on either December 20, 2020, or September 6, 2019 (see Terrance Williams, 111 AD3d 1435, 1436 [4th Dept 2013], aff, 24 NY3d 1129 [2015}). The same recordings put before the grand Jury that show defendant's profane exchanges with Mr. Goods before and after the pursuit, also reveal his direction toa dispatcher for an EMS response. Those recordings also show his attempt to calm Mr. Goods while Mr. Goods was stuck within the crashed Dodge Journey. Further, the pursuit’s speed was not dictated by defendant, but rather by that of a fleeing suspect. Likewise, that this defendant was allowed to remain in his assignment within the statepolice after his admitted use of a “PIT Maneuver” in September of 2019 belies the supposition that he committed that act and then similar actions in December of 2020 with a depravity analogous to that of intentional murder. Recklessness and depraved indifference are distinct mens rea (Maldonado at 57). The People, therefore, needed to present greater evidence that would have satisfied CPL 190.65(1)(a)’s first prong (see generally Terrance Williams, 24 NY3d at 1132 [for purposes of indictment, conduct evidenced as reckless, selfish and reprehensible is insufficient to make out a prima facie case of depraved indifference]). Such evidence would have more specifically, and thus adequately, described why this defendant either wished the occupants and drivers of the vehicles to be killed, or instead shown why he did not care if they had died (see Feingold at 296; Ryan B. Williams at 1284; see also Heidgen at 276 [noting the difficulty in establishing mental culpability under a depraved indifference theory}). Rather, the evidence rationally supports only the conclusion that this defendant ignored agency protocols and exercised extremely poor judgment in a foolish attempt to perform his job as a police officer as he saw it ~ in short, that he acted recklessly (see Prindle, 16 NY3d supra at 770; Deegan, 69 NY2d supra at 979). Without question, both the evidentiary burdens and standards of review are distinct between petit and grand jury proceedings. An element's definition, however, does not vary. ‘Thus, the element still requires that appropriate proof in support (see Heidgen at 276). And certainly too, while it is irrelevant that other innocent inferences might be drawn from the evidence before the Grand Jury (see Edwards, 36 NY3d, supra at 947), if that other presented evidence shows only a different mens rea, then the chargecannot legally stand (see Terrance Williams, 111 AD3d supra at 1435, 1436-1437; see also People v Payne, 3 NY3d 266, 270 [2004], abrogated by Feingold (“depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York.”]). A reckless, nonetheless still unintentional, killing cannot proceed as though an intentional murder. ‘An eleven-year-old git! was killed after a chain of events, sufficiently shown to be rife with imprudence and inattention, was set into action, And truly too, cases where a depraved indifference to human life is alleged will often contain horrific facts. Such facts are present here. Those same types of facts, nevertheless, make a depraved indifference prosecution among the most likely to result in a conviction where, instead, a conviction to a lesser, though still serious, charge would have been the proper outcome (Ryan B. Williams at 1287 quoting Heidgen at 281, Smith J, dissenting), Surely, as well, by the presented evidence, this defendant’s compliance with the professional standards of the New York State Police is rationally presumed to be deficient. In that regard, the People’s fact witnesses recounted a defendant whose demeanor might be charitably described as vulgar during his confrontation with Mr. Goods and arrogant in his exchange with Mr. Muthu, Inflammatory facts alone, however, do not necessarily establish a depraved indifference to human life (see Ryan B, Williams at 1287, citations omitted). Applying the above case law to the facts of this case leads this Court to conclude that the counts charging Murder in the Second Degree-Depraved Indifference to Human Life, and Reckless Endangerment in the First Degree could not be properly sustained before a petit jury (see Jennings, 69 NY2d supra at 114; see also People v Peryea, 14 20Misc 3d 1218[A][Clinton Cnty 2006] [count alleging Penal Law § 125.25(2) dismissed by trial court where evidence before grand jury failed to establish defendant’s mens real). And as Ryan B, Williams and the line of case its holding relied upon make clear, matters alleging a depraved indifference to human life are, undeniably, “highly fact-specific.” (Ryan B, Williams at 1284, quoting Heidgen at 276; Feingold at 296). A fact-specific comparison of Ryan B. Williams and the case at bar reveals a defendant in that case who drove at speeds near 130 m.p.h. to escape law enforcement. ‘That defendant did so on a road restricted to speeds of 55 m.p.h., and that contained only ‘two lanes, but at a time of day where “lighter traffic conditions predominated.” (Williams at 1287). That defendant also applied his brakes in attempts to avoid collisions. Here, the defendant is a law enforcement official who is alleged to have undertaken an unauthorized high-speed pursuit to stop a fleeing motorist, on a four-lane highway designed for higher speeds, at late hours with few other motorists travelling. After having initiated a vehicle-to-vehicle contact maneuver, which he had also performed on prior occasion, and one described within agency manuals, this defendant then applied a “hard brake” an instant prior to a second impact. The People’s expert described that “hard brake” as having been done as in an emergency. There cannot be one definition of murder for a person who is fleeing a pursuing police officer and an alternate definition for a police officer who is the one engaging in a pursuit. If the defendant in Ryan B. Williams did not act with a depraved indifference to human life, then this Court cannot conclude there is reasonable cause to believe this defendant did so here. Equal justice under the law demands nothing less. aiCONCLUSION Accordingly, pursuant to CPL 210.20(1)(b) count one is dismissed, as the evidence before the grand jury was not legally sufficient to establish the offense charged. ‘The count cannot be modified as count two alleges the lesser included offense of Manslaughter in the Second Degree (Penal Law § 125.15[1]). Consequently, upon the sufficiency of the evidence presented, and as detailed above, defendant's request for dismissal of that second count, as alleged under Penal Law § 125.15(1) is denied. Further, pursuant to CPI. 210.20(1-a), counts three through eight are modified as reduced to the lesser included offense of Reckless Endangerment in the Second Degree (Penal Law § 120.20). Review of the Grand Jury minutes otherwise reveals no defects within the proceedings or errors of such degree that would warrant dismissal of the indictment (see People v Busreth, 167 AD3d 1089, 1090 [3d Dept 2018}). Accordingly, defendant's request for dismissal of the indictment pursuant to CPL 210.35 is denied. Defendant’s request for severance of counts six through eight is also denied. While the counts allege a different criminal transaction, all offenses fall under the same or similar law. The counts can be properly offered at trial separately, clearly and without unfair favor to the People (see People v Durant, 205 AD3d 1067, 1069 [3d Dept 2022)). Additionally, defendant's application that seeks dismissal of counts four, five, six, seven and eight as duplicitous and multiplicitous is also denied. Each count alleges a single offense, at a specified time but relative to a distinct person (see People v Bauman, 212 NY3d 152, 154 [2009]). Each count, therefore, requires proof of an additional fact that the other does not (see People v Fulton, 133 AD3d 1194, 1195 [4th Dept 2015)). As well, defendant's request for a bill of particulars under CPL 200.95 is obviated by the accounts contained within the People’s response. ‘The People’s descriptions advised defendant of the alleged date, time, location, and general nature of the misconduct with which he was charged. Defendant is sufficiently informed of the People’s case theory (People v Thompson, 27 AD3d 888, 890 [3d Dept 2006). Further, the People have declared a recognition of their duties under Brady, Giglio and Geaslen. Absent a showing by defendant of the People’s violation of these caselaw doctrines, this Court can take no action. Defendant’s request for a hearing pursuant to Geaslen is therefore denied. To the degree that this Court may intercede, those previously issued standing Orders to Counsel are restated here, and the People are directed to disclose to defendant any impeachment materials contained either within their actual possession or that they may be able to access related to any other non-police witnesses they may call (CPL 245.20[1][k]; see People v Rosario, 70 Misc 34 753, 757 [Albany Cnty 2020)). The foregoing constitutes the Decision and Order of this Court. 2 Signed, this day of February, 2023, Kingston, New York. ENTER FILED uw FEB 02 2023 lina Postupacl Ustor County eink 2B