The People of the State of New York, Respondent v. Darius Dubarry, Appellant

Summary

The New York Court of Appeals held that a defendant cannot be convicted of both intentional murder (under transferred intent) and depraved indifference murder for the same homicide, requiring the charges to be alternative, and ordered a new trial on those counts. It also held that the trial court erred in admitting the unavailable witness’s grand‑jury testimony without clear and convincing proof of the defendant’s misconduct, a constitutional violation that was not harmless, and ordered a new trial on the attempted murder count as well. The Court remanded the case for further proceedings. Justice Pigott dissented in part, arguing that the attempted‑murder conviction should stand and that the Sixth Amendment was not violated.