In a dramatic move, the state's highest court Tuesday reversed a Suffolk County conviction of a Shelter Island man who shot to death his neighbor in a crime that divided the small, insular community and gained notoriety as the first murder in its 350-recorded history.
In a 5-2 decision, the Court of Appeals said the Suffolk jurors that convicted Kenneth Payne in 2000 of second-degree murder for acting with "depraved indifference" should have convicted him of "intentional murder." The jury acquitted him of an intentional murder charge in the shooting death of his former best friend, Curtis Cook.
The ruling clears the way for Payne to be released from Five Points Correctional Facility in upstate Romulas, where he has served six years of a 25-to-life sentence. And because the court ordered that the indictment be dismissed, the decision could leave Payne a free man within days.
But Suffolk District Attorney Thomas Spota said in a statement that his office will file a stay to ensure that Payne remains in jail while their motion to reargue the hearing is considered by the high court.
"We strongly disagree with the court's decision that may result in freedom for Mr. Payne who a Suffolk County jury concited of second-degree murder in 1998," Spota said in a statement.
The high court's ruling is the latest of several decisions that signal to prosecutors that the depraved indifference murder charge needs to be used more judiciously, legal experts said.
"A one-on-one shooting can almost never qualify as depraved indifference murder," the court said in its ruling.
Such charges, it said, are applicable for "shootings into a crowd, placing a time bomb in a public place or opening the door of a lion's cage in a zoo."
The decision could free a man who openly admitted that he took an elephant gun in April of 1998 and fired a single shot into Cook's stomach, his former best friend. Two weeks earlier Cook had been arrested and charged with sodomizing and molesting an 8-year-old girl in July of 1997. Payne has said Cook threatened his 12-year-old daughter and girlfriend.
Cook's family could not be reached for comment Tuesday.
Payne's attorney, Robert Kenney of Legal Aid Appeals in Riverhead, said though Payne clearly committed the murder, he deserves to be freed given the conditions of the crime and the victim.
"My client has no record, no history of violence, and he's done a substantial amount of time," Kenney said. "This was one isolated thing."
"It's not like this guy wasn't punished," he added. "He was punished enough for this situation."
For Payne's family - which includes three children, ages 18, 16 and 7 - the news was a welcome relief. "We've been hoping and praying and praying every night," said Margaret Payne, his mother.
"This will be a just thing," she added. "He didn't walk. He served six years. I think that's sufficient."
Richard Barbuto, past president of the New York State Association of Criminal Defense Lawyers, said prosecutors have gotten into the habit of charging defendants with both murder charges, a practice the court clearly disagrees with. "I think prosecutors are going to have to think about their cases more and not just throw everything into the pot," Barbuto said. "Now you're going to see prosecutors being much more careful in what they select as their charge."
Legal experts said they don't expect that there are many similar cases. "I doubt that there is a whole host of cases out there that this would apply to," said Nora Demleitner, professor of law at Hofstra University. "Obviously in the future, prosecutors will to be more careful ... and jury instructions will have to be delivered."
In his statement, Spota noted that when he took office in 2002 he instituted a policy change that could have prevented the current scenario.
"In my view, a grand jury considering a murder charge should consider one version of that charge," Spota said.
"Had this policy been in effect in the previous administration, the Payne indictment and conviction would not be imperiled," he added.
Tuesday's decision leaves the likelihood that Payne will return to his home on Shelter Island, a rural enclave nestled between the North and South Forks and home to a little more than 2,000 people.
While in jail, dozens of residents wrote to the court pleading for a light sentence for Payne and bumper stickers supporting him sprouted around town.
How the community will react now remains unknown.
"It will be interesting" is all Supervisor Arthur Williams would say.
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