People v. Barboni

Smith, J. (concurring).

I concur in the result the majority reaches, but not in its reasoning. I do not think this case fits with our depraved indifference jurisprudence as it has developed over the last decade. Rather, I think that a case like this—a severe beating that killed an infant—is a justified, narrow exception to the rule established by our recent cases that a depraved indifference murder conviction cannot be sustained unless a *408jury could find, beyond a reasonable doubt, that the defendant was literally indifferent to whether the victim lived or died.

This is the first case since…