MANHATTAN (CN) - A man who flung plates and bottles from a 26th floor hotel balcony in between cartwheels during morning rush hour deserves prison, a New York appeals court ruled.
After a jury convicted David Green of first-degree reckless endangerment, a crime for which he was sentenced to one year in prison, Green claimed on appeal that his actions lacked the requisite "depraved indifference" since he had been drunk.
Green was 24 years old on the morning of Aug. 15, 2005, when he admittedly "engaged in this callous and self-evidently dangerous behavior for no purpose other than to amuse himself and his friends," according to the opinion from the Appellate Division's First Department.
Though the behavior "was reckless and created a grave risk of death to others," he insisted that it "reflected [only] stupidity and drunken thoughtlessness."
The court voted 3-2 last week to affirm the conviction after finding that "videotapes of the incident show no evidence of significant impairment of his physical coordination."
In fact, Green managed to execute two cartwheels while holding a bottle and to sprint "toward the balcony's ledge, with no hint of staggering, while steadily holding a glass in his hand," Judge David Friedman wrote for the majority.
The video also shows that Green had the wherewithal to stop his antics when he spotted the cops, and then carry on when authorities left the scene.
Green also "testified that he could still 'remember everything [he] did' that morning," leading Friedman to say "the notion that defendant was so profoundly inebriated as to be unaware of the grave danger obviously created by his actions can only be described as risible."
"What sets depraved indifference apart from mere recklessness is that the former involves 'an utter disregard for the value of human life - a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not," Friedman wrote.
Green's behavior fits the description, according to the ruling.
"Plainly, defendant could not have failed to appreciate" the grave risk of death "if a bottle or plate thrown from the height of 26 stories hit a pedestrian or the windshield of a motor vehicle that someone was driving," Friedman wrote.
"Because the jury could reasonably determine that defendant was aware of the risk he was creating, and did not care whether or not that risk came to fruition, that the finding that he acted with depraved indifference should be upheld," he added.
The court also refused to suppress evidence police gathered after entering Green's hotel room without a warrant in response to call from a woman who claimed that "foreign visitor" in the room had raped her.
Friedman noted that Green "gave his written consent to a search of the room."
Evidence shows that "the police informed defendant that he had the right to refuse to consent to a search," making the warrantless search legal, the ruling states.
Judge Sallie Manzanet-Daniels wrote a brief dissent joined by Judge Dianne Renwick.
"The state of mind required for depraved indifference requires 'utter depravity, uncommon brutality and inhuman cruelty,'" Manzanet-Daniels wrote.
They found that Green's actions, on the other hand, "reflected stupidity and drunken thoughtlessness, rather than 'wickedness, evil or inhumanity.'"
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