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In this criminal case, defendant moves this court to declare Penal Law § 125.27

In this criminal case, defendant moves this court to declare Penal Law § 125.27 (1) (a) (vii) unconstitutionally vague and overbroad because it certain phrases that fail to receive consistent definitions. A Queens Criminal Lawyer said that, defendant argues that the phrases “in the course of” and “in furtherance of” run afoul of his State and Federal constitutional protections. A Lawyer said that, defeincludesndant seeks to have this court dismiss the first degree murder counts of the indictment, or preclude their application to him. The People oppose his motion.

The issue in this case is whether Penal Law § 125.27 (1) (a) (vii) is unconstitutional warranting the dismissal of defendant’s first degree murder counts of the indictment, or preclude their application to him.

The Court in deciding the case said that the “void for vagueness” doctrine requires that a penal statute provide a defendant with adequate notice of the conduct prohibited, while affording “law enforcement officials some objective standard to avoid `the possibility that the law will be arbitrarily enforced.'” Defendant bears the heavy burden of overcoming the presumption of a statute’s constitutionality. For years in the context of New York’s noncapital felony murder statute, Penal Law § 125.25 (3), the phrases “in the course of” and “in furtherance of” have implicitly passed constitutional muster. The language of Penal Law § 125.27 (1) (a) (vii) is nearly identical to the language of Penal Law § 125.25 (3). The Court said that the sole distinction between the two statutes is the element of intent. Specifically, for a murder to be elevated to a capital offense under Penal Law § 125.27 (1) (a) (vii), it must be intentionally committed in the course of, and in furtherance of a felony.

The Court said that, defendant also asserts that Penal Law § 125.27 (1) (a) (vii) is irrationally under inclusive in that it renders death eligible murder committed during certain felonies, but excludes other murders committed during what defendant describes as, “equally serious felonies, and premeditated murders.” In support, defendant cites proposed legislation to amend the existing statute to include intentional murder committed during additional felonies, such as digital rape. The Court held that, defendant’s argument is incongruous in the context of this case. Defendant does not argue that an intentional murder committed during the course of a rape should not be sanctionable by death, just that murders committed during other forms of sexual abuse merit the same sanction. Defendant claims that this purported inconsistency renders the statute arbitrary.

A capital punishment statute need only “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” This court declines to thrust itself into the role of the Legislature and determine which murders warrant the sanction of death. Sufficient reasons exist, including the level of violence associated with the felony committed during a murder, to justify the distinctions drawn by the Legislature. For the same reason the court said that it is not persuaded that the exclusion of premeditated murders from the list of death eligible murders renders the statute unconstitutional.

Defendant also argues that Penal Law § 125.27 (1) (a) (vii) has an unconstitutional disparate racial impact. This court finds this argument is wholly without merit. In view of the foregoing, the Court held that defendant’s motion is denied.

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