By David Brand
The Second Department Appellate Division has hit the restart button on a 2001 depraved indifference murder conviction and sent the case back to a Queens grand jury.
In February 2001, a jury found Thomas Hernandez guilty of murder for his role in a 1999 group attack that killed a teenager in Rego Park. Hernandez, then 21, and three adolescents kicked, punched and beat 16-year-old Thomas Lee with a baseball bat.
Lee died as a result of blunt force trauma to the head, injuries consistent with being hit seven times with a baseball bat.
Hernandez, a Briarwood native, appealed his conviction in 2004, but it was upheld by the Second Department. His lawyers appealed again after Justice Richard Buchter denied a 2016 motion to retry the case based on a new precedent set by the Court of Appeals, which changes the depraved indifference statute.
The case People v. Payne changed the definition of “depraved indifference murder” to mean that “absent unusual circumstance, a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder,” according to the Second Department’s decision released on Wednesday.
This time around, the Second Department judges focused on the highest court’s precedent, which was set forth just 15 days before their decision to uphold Hernandez’s conviction was finalized.
“Although the new law on depraved indifference murder does not apply retroactively to convictions that became final prior to the change here, the defendant’s conviction did not become final until after People v Payne was decided,” the Second Department determined.
A spokeswoman for Hernandez’s attorney Jonathan Edelstein told the Eagle that the lawfirm Edelstein and Grossman were considering the next steps in the case.
“We are pleased with the decision and we will discuss next steps with the client,” the spokeswoman said.
A spokeswoman for Queens District Attorney Richard A. Brown said the office “intends to seek leave challenging the decision.”
During the 2001 trial, Hernandez’s original co-defendants Jason Figueroa, then 14; Boris Kunin, then 15; and Besnick Prebreza, then 17, all testified against him. Figueroa was charged with manslaughter while Kunin and Prebreza were charged as youthful offenders and received six-month sentences.
“Turning to the merits of the motion, the trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder,” the court wrote in a unanimous decision. “Accordingly, the Supreme Court should have granted the defendant’s motion [to] vacate so much of the judgment of conviction as convicted him of depraved indifference murder, and dismissed that count of the indictment.”
Hernandez was charged with intentional murder, depraved indifference murder, three counts of fourth-degree criminal possession of a weapon and first- and second-degree manslaughter before Justice Richard Buchter.
The jury acquitted Hernandez of intentional murder, but convicted him of depraved indifference murder and one count of possession of a weapon in 2001.