Articles Posted in Murder

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A man filed an action to dismiss the charge of murder against him. He subsequently indicted in the State of Maryland, along with his colleague, on the allegation that he conspired with them to the murder of the victim. But, the man was acquitted of the conspiracy charge upon a jury verdict. The narrow issue presented by the motion is whether the conspiracy ruling and the murder statute are designed to prevent different kinds of harm.

The acts allegedly committed by the man which underlie both the Maryland and New York court are substantially the same. The evidence revealed that the man directed his colleague to go from Maryland to New York to kill the victim. It is alleged that the man’s colleague shot and killed the victim in New York.

The man apparently recognizes that the still viable dual sovereignty doctrine permits consecutive proceeding based upon the same transaction or event. Therefore, the double jeopardy clause is not relevant to the motion.

Based on records, the term criminal transaction is defined as a group of acts either so closely related and connected in point of time and circumstance of commission as to constitute a single criminal happening, or so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal scheme. In the case, both parties are in agreement that the Maryland and New York prosecutions involve the same criminal transaction.

Sources revealed that the two different prosecutions clearly contain an element not found in the other. The key element of the New York statute is an accomplished murder. But, the Maryland statute is founded upon a common law offense, the idea of which is unlawful combination and which requires no obvious act to establish the offense.

In addition to the fact that the crimes charged each contain an element not contained in the other the court of appeals has recognized that the crime of conspiracy and the crime which is the object of that conspiracy are two separate offenses.

The issue presented is a close one and not overall free from doubt. To conclude, the court believed that the two prosecutions involved are in fact intended to contest very different kinds of harm that they differ materially in scope and purpose.

The clear rationale underlying the trilogy is that the crime charged in New York could have been charged and prosecuted in the federal conspiracy. The court stated then that the New York crime could have been charged as no more than an overt act in Maryland and could not have been charged there as an independent crime. It would consequently appear that the court of appeal’s reference to the embracive nature of conspiracy has little relevance to the case, where such embracive nature did not permit Maryland to charge the New York offense in general.

Evidence revealed that the murder was apparently committed in New York. But, the court didn’t believe that a conspiracy proceeding in Maryland, aimed at Maryland conduct, in which the fact of the murder was but an overt act, and not a fact necessary to that trial, bars a New York prosecution for the murder. Consequently, the court ordered to deny the man’s motion.

Based on records, it nevertheless should be noted that the man never left Maryland. His mere membership in the conspiracy, standing alone, may not be a sufficient reason for accessorial liability in New York criminal law. Therefore, the issue is not in the court and should not prevent New York from seeking to establish the man’s criminal liability for the crime of murder.
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The defendant is a confessed serial killer and was convicted by a jury for several offenses including one count of first degree murder for intentionally causing the death of three women in separate criminal transactions that were committed in a similar fashion.

The people filed a notice of intent to seek the death penalty and because of this a separate sentencing proceeding followed the jury case. The jury in the sentencing court determined unanimously that the defendant should be executed. The defendant appealed to this court.

Case Discussion
The death sentence is not currently at issue in this case. The defendant contends and the People do not dispute, that the sentence for death be set aside.

The issue before the court is the numerous grounds being raised by the defendant to have his convictions reversed.

Case Background
At around eight in the morning on the seventh of December, an employee of the Suffolk County Department of Public Works was travelling on Long Island Avenue to a jobsite in the town of Medford, noticed what appeared to be a brand new garbage can lying on its side among other debris at the edge of the road. He stopped his car to look at the can more closely and thought that someone had “dumped a load of bad meat.”

He went on to the job site and told his supervisor about the mess and suggested that they clean up the area and pick up the garbage can. The supervisor went by the area on his way home and inspected the garbage can. He discovered the remains of a woman. This body remains unidentified.

In April, employees at a recycling plant in Brooklyn found a second dismembered nude, female body. Another body was found the following December by an employee of a sheet metal company.

The detectives working the case through an anonymous tip discovered that the last victim was a prostitute. He went to an area near where the body was found and talked to several other prostitutes and learned that a white male driving a blue Cadillac would frequently solicit the area. The man would not take the women to a hotel, but rather to a residence located in Nassau County.

The detective followed up on the lead and eventually the defendant was arrested and admitted to the crimes.

In all of the crimes the defendant brought the women to his room and killed them by beating them with a blunt object. He then did away with bodies by cutting them up. While the defendant contends that there was not enough evidence to support the convictions. The court disagrees.

Court Decision
The court finds all of the arguments made by the defendant to be without merit. For this reason, the judgment of conviction is affirmed. The sentence is modified to not include the death penalty.
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The petitioner, an inmate at Coxsackie Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review a determination by respondent New York State Board of Parole denying his request for discretionary release. Respondent opposes the petition seeking its dismissal.

Currently, the petitioner is serving an indeterminate prison sentence of 15 years to life upon a plea of guilty to Murder in the second degree. The underlying offense that occurred in 1980 involved the petitioner, in concert with others, robbing a victim at knife-point and then stabbing the victim to death. The petitioner was approximately 20 years old at the time he committed the underlying offense.

An Attorney said that In July 2007, the petitioner appeared for the seventh time before the Parole Board, having served almost 27 years in prison. The petitioner noted during the interview that he had a prior criminal record, including a conviction for arson. He also acknowledged that he had stabbed the victim and, prior to the underlying crime, had been taking part in robberies in the area where the crime occurred.

In addition to discussing the underlying crime, the petitioner discussed with the Parole Board his proposed plans upon release. The Parole Board noted its concern regarding the petitioner’s admitted drug use and the fact that he had only been drug free for less than a year. The petitioner informed the Parole Board that he hoped, upon release, to be admitted to an inpatient drug program to help with his adjustment into society after such a long period of incarceration. If that does not work, the petitioner explained that his parents will let him live with them while he gets some much needed education. Also, the petitioner discussed his positive involvement in the Alcohol and Substance Abuse Treatment Program. The Parole Board noted that the petitioner had not had a Tier II ticket since 2004. The Parole Board ah afforded the petitioner an opportunity to inform it of any other matters he thought important to his application for discretionary release.

Subsequently, the Parole Board denied the petitioner’s application for discretionary release, holding him for 24 months.

The petitioner administratively appealed the parole determination, but no decision was issued regarding that appeal. Petitioner then commenced this CPLR article 78 proceeding for review of that determination. In this proceeding, petitioner argues, inter alia, that Parole Board’s determination should be annulled because in reaching it the Parole Board failed to consider (1) that the petitioner has already served time way in excess of his minimum sentence; (2) the petitioner’s exemplary institutional programming and strong community support; (3) the petitioner’s acceptable post-release plans; (4) the sentencing minutes; and (5) the petitioner’s equal protection rights.

The Court ruled that Executive Law § 259-i (2) (c), in relevant part, provides that the following factors shall be considered by the Board in making a decision regarding discretionary parole release:

“(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services; and (v) any statement made to the board by the crime victim or the victim’s representative.”

Further, where, such as here, a petitioner’s minimum period of imprisonment was not fixed pursuant to the provisions of Executive Law § 259-i (1), but rather by the sentencing Court, the Board must also consider the following factors from Executive Law § 259-i (1) (a):
“(i) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest and prior to confinement; and (ii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.”

“It is well settled that parole decisions are discretionary and will not be disturbed so long as the statutory requirements set forth [above] are met” Moreover, “judicial intervention is warranted only when there is a `showing of irrationality bordering on impropriety'”
In this criminal law case, a review of the record establishes that the Parole Board, except for one notable exception referred to below, considered the relevant statutory factors in exercising its discretion to deny petitioner parole. The Parole Board may properly consider the seriousness of the underlying crime, which in this instance is murder in the second degree, and the Board is “not required to give equal weight to the statutory factors it considered in reaching its discretionary determination” Both the interview transcript and the record before the Parole Board demonstrate that the Board also considered, inter alia, the petitioner’s institutional achievements, his disciplinary record, post-release plans, his institutional adjustment and the pre-sentence report. Notably, the Parole Board discussed at length with the petitioner his drug use history. In addition, the Parole Board gave the petitioner an opportunity to highlight or discuss any matter he felt warranted the Board’s attention. Thus, the record does not substantiate the petitioner’s claim that the Board only considered the seriousness of the underlying crime in denying his application for discretionary release.
In addition, in a previous criminal law case, the Third Department expressly rejected the argument that an inmate was deprived of due process because “the Board failed to indicate areas in which petitioner fell short of qualifying for parole” That Court explained: “Executive Law § 259-i does not create an entitlement to release on parole and therefore does not create interests entitled to due process protection” Moreover, the Court is not persuaded by the “petitioner’s equal protection claim alleging that the Board treated him differently from other inmates” who have also appeared before it. “Inasmuch as the Board’s ruling in this instance bears a rational relationship to the legitimate objective of community safety and respect for the law,” that claim must be dismissed.

Turning to the failure of the Parole Board to consider the sentencing minutes, the Court is mindful of cases which have vacated parole determinations where the Parole Board failed to consider the inmate’s sentencing minutes.
In this instance, the respondent has submitted a document dated from the County Clerk and Clerk of the Supreme Court of Nassau County, in which she certifies that the minutes of petitioner’s sentencing cannot be located after a thorough search.

The Court is thus confronted with a situation where the Division of Parole has failed in its obligation, apparently over a substantial number of years, to obtain a copy of the petitioner’s sentencing minutes. What renders the situation all the more egregious is that the sentencing minutes are no longer available and cannot be obtained. In the Court’s view the determination of the Parole Board was procedurally flawed in that it did not consider the sentencing minutes; and was not informed that the sentencing minutes are no longer available. The Court finds that the matter should be remanded to the Parole Board for a de novo parole interview. The Parole Board should be advised of the foregoing. It should make a finding with regard to whether the sentencing minutes are no longer available and cannot be obtained. In the event that the Parole Board finds that the sentencing minutes are no longer available and cannot be obtained, then it should make a separate finding, if it be the case, that there is no evidence in the record which indicates that the sentencing judge made a sentencing recommendation adverse to the petitioner.
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The defendant is appealing a judgment made in the County Court of Albany County. The judgment found the defendant guilty of murder in the second degree.

Case Background
The defendant was fifteen years old at the time of the incident. He armed himself with a gun and along with two other individuals rode his bike into another neighborhood. The group ran into another group of three boys and after a “stare down” the defendant pulled the gun from his pocket. The other group of boys started to run. The defendant fired a shot at them.

A few seconds later another group of boys returned fire, shooting approximately three shots at the defendant’s companions as they ran down First Street. The defendant fled in another direction down Judson Street.

When the defendant reached the intersection, the victim a ten year old girl, was sitting on the front steps of her home. A bullet hit her and caused her death.

The defendant was charged as a juvenile offender with intentional murder in the second degree, depraved indifference murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, and criminal possession of a weapon in the second degree.

The County Court denied his motion to dismiss one or both of the murder charges.

The defendant was convicted by a jury for the depraved indifference murder in the second degree and criminal possession of a weapon in the second degree charges. He was sentenced to fifteen years to life in prison.

Case Discussion and Decision
The County Court did not error when they allowed both murder counts to be submitted and denied the defendant’s motion to drop one or both of the murder charges. While allowing an individual to be charged with both intentional and depraved indifference murder charges as alternate theories should not be allowed regularly, in this particular case it was allowable.

The defendant could have been found guilty of intentional murder of the victim under a theory of transferred intent or he could have been found to have acted with depraved indifference by shooting a gun on a street that was crowded. For this reason, the court did not make an error by allowing the jury to consider both murder counts.

The defendant further contends that the conviction was based on insufficient evidence. He states that the People failed to prove the element of depraved indifference or that the fatal bullet came from the defendant’s gun.

The Court of Appeals has stated that whenever a gun is fired into a crowd and innocent bystanders are endangered, it is a prime example of depraved indifference. For this reason, the appeal to reverse the judgment against the defendant is denied. The judgment is affirmed as well as the sentence of fifteen years to life.
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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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The Facts:

On 21 January 1997, an omnibus motion was filed by the defendant and requested numerous orders and hearings. The People filed papers in opposition, and the defendant filed a reply. Oral argument was heard on the motions.

The Ruling:

The defendant moved to dismiss the indictment on the grounds that counts one, two, three, five, and six are multiplicitous; and count one improperly double-counts the victim’s death.
On counts one and two-multiplicity:

Under the law, an indictment is multiplicitous when two or more separate counts charge the same crime while an indictment is not considered multiplicitous if each count requires proof of an additional fact that the other does not. Under the death penalty statute, the aggravating factors that elevate a murder to the status of a crime worthy of the death penalty are prescribed in the definition of the offense itself. Thus, Penal Law provides that a person is guilty of murder in the first degree when, with the intent to cause the death of a person, he causes the death of that person or a third person, and the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of certain enumerated felony offenses, including robbery. The legislature chose to include only certain degrees of the enumerated felonies, except for robbery, which is listed without reference to the degree of the offense.

Here, count one of the indictment charges the defendant with murder in the first degree, with robbery in the first degree as the aggravating factor. Count two charges the defendant with murder in the first degree, with robbery in the third degree as the aggravating factor. Both counts are predicated upon the same alleged conduct. The only difference between the two counts as charged is in the degree of the robbery. Should the People prove count one, they will have also necessarily proven count two, since it would have been impossible for the defendant to have committed an intentional killing in the course of a first degree robbery without concomitantly committing an intentional killing in the course of a third degree robbery.

Clearly, it appears that counts one and two charge the same crime, murder in the first degree predicated upon the felony of robbery, and are, thus, multiplicitous. Indeed, by specifying robbery, without reference to degree, as a felony that may form the basis for an aggravating factor, the legislature apparently did not intend to permit multiple charges of murder in the first degree predicated upon different degrees of robbery arising out of the same occurrence. The crime of murder in the first degree with robbery as the felony aggravating factor requires proof of the intentional killing of the victim in the course of or in furtherance of the defendant’s commission of the crime of robbery. As to the underlying felony, it does not require proof of any facts additional to those required for simple robbery, i.e., forcible stealing. Thus, any reference in the indictment to the degree of the robbery must be considered mere surplusage.

Notably, multiplicity may be remedied either by an election of counts by the prosecution, or by the court’s decision to charge only one of the multiplicitous counts to the jury. It is in the court’s opinion that the preferred practice is to cure the defect before trial, and in so doing, eliminate any prejudice in the penalty phase, assuming there is to be one, that might accrue from the jury’s consideration of redundant aggravating factors during the guilt phase of the proceedings.

Hence, the court orders the dismissal of count one, charging murder in the first degree, with robbery in the first degree as the aggravating factor. Count two remains in effect.
On counts two, three, five and six-multiplicity and double-counting:

The court rejects the defendant’s claim that the contested counts are multiplicitous. The counts at issue have different elements that require proof of additional facts that the others do not. The second count, charging murder in the first degree, requires proof that the alleged intentional killing took place in furtherance of a robbery, while the third count, also charging murder in the first degree, requires proof that the alleged intentional killing took place in furtherance of the crime of kidnapping in the first degree. Similarly, the felony murder counts five and six require proof pertaining to different underlying felonies: robbery and kidnapping, respectively. For the purpose of determining multiplicity, it does not matter that the charges arose out of the same conduct, so long as each charge requires proof of an additional fact that the other does not.

Moreover, the court is not persuaded by the defendant’s argument that, by listing a series of felonies together within one of the twelve subparagraphs of aggravating factors, rather than listing each of the felonies in a separate subparagraph, the legislature intended to permit the charging of only one count of murder in the first degree premised upon the commission of an intentional killing in the course of a felony, whether or not the defendant, in fact, committed an intentional killing in the furtherance of multiple felonies. It cannot be the law that, regardless of the number of felonies in furtherance of which an intentional killing is committed, the People are bound to charge only a single count of murder in the first degree. Limiting the charges in this way would preclude the jury’s proper and due consideration of the full breadth of the defendant’s alleged criminal conduct. That the statute specifies twelve different felonies that may serve as the underlying felony aggravator evinces the legislature’s intent to make the commission of an intentional killing in the furtherance of any one of the felonies a crime worthy of the death penalty. To force the People to elect to proceed on an indictment charging only one count of murder in the first degree premised upon only a single felony, even though the defendant’s conduct constituted several of the enumerated felonies, would rob the People of the opportunity to prove the defendant’s guilt of murder in the first degree in furtherance of any one of the twelve enumerated felonies, as contemplated by the statute. That fact that the legislature chose to list the felony aggravators in one subparagraph does not lead to a contrary conclusion. Had the legislature intended to permit only a single charge of murder in the first degree for intentional murder in the course of a felony without reference to specific felonious conduct, as the defendant suggests, the legislature could have said as much. Instead, by listing specific felonies, the legislature plainly evinced its intent to permit multiple charges of first degree murder premised upon an intentional killing in the course of any one or more of the specified felonies. The legislature’s decision to place all of the felony aggravators in a single subparagraph reflects an attempt to make the statute as concise as possible: by listing the felony aggravators together, the legislature kept the number of subparagraphs to twelve, rather than the twenty-four that would have been required to list each felony separately. The court is not convinced that the subject law was constructed to unduly and artificially restrict the proof of the defendant’s conduct.

Hence, the defendant’s motion to dismiss the indictment is denied, except count one which is dismissed. With regard to counts two and three, the court reserves decision as to whether the jury should be instructed in the penalty phase that these counts constitute separate and distinct aggravating factors, or should be merged into a single aggravating factor.

On the Motion to Dismiss:

The defendant moves to dismiss the indictment pursuant to C.P.L. § 210.25(3) on the ground that P.L. § 125.27(1)(a)(vii) is unconstitutional. Specifically, he claims that the provision is irrationally underinclusive of other potential felony aggravators. In addition, according to the defendant, count three of the indictment, charging murder in the first degree with kidnapping in the first degree as the aggravating factor, impermissibly double-counts the victim’s death. Lastly, he claims that counts two and three, charging murder in the first degree, and counts five and six, charging murder in the second degree, are vague and overbroad.

First, the court finds that the subject statute passes constitutional muster. The statute limits death penalty eligibility to a subclass of murders. None of the aggravators is unconstitutionally vague. In particular, the aggravating factors with which the defendant is charged, robbery and kidnapping in the first degree, are quite clear. All of the felony crimes included by the legislature as aggravating factors are crimes involving violence or potential violence, and substantial risk of physical injury. The defendant’s argument that some felonies of a lesser class are included while others of a greater class are left out misses the point. It is not the class or grade of felony that must necessarily inform the legislature’s choice. Rather, it may rely on the inherently violent nature of the underlying felony in concluding that it renders an intentional killing in the course thereof. There is no evidence before the court that New York’s death penalty statute has been applied, or necessarily will be applied, in any way to discriminate against any constitutionally protected class of people. To the extent that the defendant relies upon studies pertaining to the use of the death penalty in other states, even those studies do not conclusively establish that race, or any other impermissible factor, intrudes upon the death penalty decision, which is, after all, based upon myriad factors pertaining to the strength of proof of guilt in the individual case, as well as the aggravating and mitigating factors as applied to the specific defendant.

Second, the defendant’s double-counting claim is belied by the facts. Here, no element is double-counted. To establish the third count of the indictment, the People are required to prove two very different things: that the defendant committed an intentional murder in furtherance of kidnapping in the first degree, and that the victim died before he could return or be returned safely. As to the murder element of the crime, the People must prove an intentional killing, while, as to the kidnapping aspect, the People need only prove the victim’s death before his safe return, without regard to the defendant’s intent, or even causation. There is no prohibition, constitutional or otherwise, of using a single circumstance, such as the victim’s death, to establish more than one element of the charged crime. Moreover, ordinary felony murder cases under the former penal law, cited by the defendant for the proposition that the other elements constituting the felony which the defendant is engaged in must be so distinct from that of the homicide as not to be an ingredient of the homicide, are inapposite for the obvious reason that the defendant is not charged with ordinary felony murder, but with capital murder, which, unlike felony murder, requires proof of an intentional killing. Therefore, the concerns extant in those cases are not present in the instant case. Defendant is not charged with “killing to further a killing”. Rather, he is charged with an intentional killing in the course of and in furtherance of an abduction in which the victim died.

Third, the defendant’s argument that the legislature could not have intended to include as an aggravating factor kidnappings, while excluding second degree kidnappings, is unpersuasive. The most obvious riposte to the defendant’s argument is that if the legislature had intended to exclude kidnappings from the list of aggravating factors, it could have expressly done so but it did not. The court rejects the defendant’s invitation to encroach upon legislative prerogatives by holding that the legislature’s selection of aggravating factors was wholly irrational.

On the motion to challenge the method of assigning judges:

The Chief Administrative Judge has clear authority to prescribe the method of random selection of judges. His decision to limit the random selection of judges to those within a pool of six chosen for their ability to handle the complex issues in interpreting New York’s newly-enacted death penalty provisions is rational, fair, and non-discriminatory. It is substantially similar to the non-aligned system by which other complex criminal cases have been assigned for years. The defendant has failed to allege any prejudice to him, actual or potential, arising from the system. Unsupported by any relevant precedent or authority, the defendant’s claim has no merit whatsoever.

On the motion to strike notice of intent to seek the death penalty:

The defendant moves to strike the District Attorney’s notice of intent to seek the death penalty on the grounds that the recently-enacted death penalty legislation, on its face, and as applied to him, violates provisions of the United States and New York Constitutions and Civil Rights Law. Specifically, the defendant claims that the death penalty constitutes cruel and unusual punishment; it violates defendant’s fundamental right to life; and it leads to inevitable racial discrimination; that the death penalty statute, as applied, violates protections against racial discrimination.

A review of New York’s history establishes that the death penalty has been a facet of the State’s jurisprudence for the overwhelming majority of its history. Neither the legislature nor the people have rejected the death penalty per se at any point in the State’s history. Only for relatively brief periods, primarily as a consequence of judicial intervention, was New York without a death penalty. The most compelling evidence of the death penalty’s acceptance in New York today is the re-establishment of the death sentence in 1995, making New York one of thirty-eight states, along with the federal government, to sanction the punishment. The fact that juries, historically, have seen fit to impose the death penalty in a small number of cases does not lead to the conclusion that the very existence of capital punishment does not comport with the standards of society. The relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Instead, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that the most irrevocable of sanctions should be reserved for a small number of exceptional cases.
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A 43-year old New Yorker has been charged with murder in the second degree. The prosecution alleged that the defendant was involved in the murder of an eyewitness to the said murder and sought to introduce the witness’ grand jury testimony at the defendant’s trial on the ground that the defendant waived his right to confront the witness.

The records of the case showed that the witness was the only civilian witness to testify before the Grand Jury. The witness said that he saw the shooting of man he knew by name who he described was a security guard but who was not wearing a uniform at the time of the incident. According to the witness’ mother, she asked her son to change his testimony or not to testify because she received several phone calls telling her that her son was the cause why another man was in jail. The caller also allegedly asked the witness’ mother to testify on behalf of her son and tell the grand jury that her son was a drug addict and that he had not seen the crime that he claimed to have seen. The mother said the caller never threatened her nor her son. The records showed that the mother only gave this testimony after her son was killed. The witness’ body was found in a deserted oversized alley. He had been shot 16 times and sustained a shot gun blast as well as bullet wounds. His mother said her son had been living in the streets because of his drug involvement and refusal to seek help and family guidance.

The court ruled that the witness’s grand jury testimony is admissible only if the prosecution is able to prove, by clear and convincing evidence, that the witness’ silence was procured through the misconduct of the defendant, that the defendant cannot then assert his confrontation clause rights in order to prevent the witness’ prior grand jury testimony from being admitted against the defendant.

Clear and convincing evidence is required in the receipt of the unavailable witness’ grand jury testimony because it can deprive the defendant of his constitutional right to confront the witness and places potentially unreliable hearsay testimony before the jury. The court recognized that this case involves an issue that has not yet been decided in courts. The court also recognized that it must weigh carefully the decision it will make in this case noting that if the testimony is admitted, the defendant will be deprived of his Sixth Amendment right to confront a crucial witness against him. If the evidence is excluded, the prosecution’s ability to proceed with the murder prosecution may well be seriously compromised. A stringent standard for measuring the sufficiency of circumstantial evidence is required to minimize a danger legitimately associated with circumstantial evidence — that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based upon probabilities of low degree.

In this case, the court found that the prosecution has submitted circumstantial evidence to meet their burden of proving by clear and convincing evidence the defendant’s complicity in the murder of this witness.

The court, in this case, found that the inference of the defendant’s complicity in the murder of the witness does not flow logically and naturally from the facts adduced. The telephone calls made to the witness’s mother are a crucial link in the chain of circumstantial evidence; however, there is no direct evidence, through voice identification or otherwise, that the defendant himself, or someone acting upon his request, made the calls to the mother, the court noted.
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In January of 1996, a man offered a woman $1,500.00 to use her apartment for a drug deal. She accepted and the man and another man moved into the woman’s apartment to wait for a large amount of heroin to be delivered from San Francisco by another man. While in the apartment, the woman saw that one of the men, the defendant, had a small caliber handgun. When the man from San Francisco who was delivering the heroin arrived in New York, the woman and two men went to his hotel.

Several days later, the defendant and the woman returned to the hotel and searched it for the heroin. When they found it, they returned to the woman’s apartment where the other men were watching television. The woman stated that she was in the living room when the defendant and the other men went into the back bedroom. They came out about 15 minutes later without the man from San Francisco. She testified later that she went in to the back bedroom and discovered the San Francisco man lying on the bed face down with blood pouring from his head. The defendant and the other two men divided the heroin among them and then convinced the woman to help them wrap the body in a rug. They dumped the body along Riverside Drive in Upper Manhattan where it was quickly found and identified.

The body was quickly connected to the woman when the name and address that the San Francisco man had given for his bank accounts were hers. New York City Police Detectives went to her apartment and questioned her about the dead man. She stated later that the defendant was still in her apartment when the detectives came and that she had feared for her safety. She stated that he had threatened to harm her child if she said anything. Later the defendant was arrested on an unrelated parole violation and incarcerated. The woman left the city and moved to Philadelphia.

In April of 1998, the defendant was released from prison and contacted the Drug Enforcement Administration. He offered his services as a paid informant if they would locate the woman for him. While DEA was interviewing him, he led them to believe that the woman had a connection to the San Francisco man’s murder. The DEA notified the New York Detectives.

In July of 1998, the Detectives went to the woman’s new home in Philadelphia. They told her that the defendant had implicated her in the murder. At that point, she admitted her involvement and agreed to testify against the defendant. On October 26, 1998 the defendant was arrested for the San Francisco man’s murder.

At trial the defendant wanted to cross-examine the woman so that he could have the jury hear that she had only implicated him after being told by the police that he had implicated her. The court refused to allow him to pursue that course because they felt that it would confuse the jury and leave speculation. It would also enable him to place his statement before the jury without giving the prosecutor the chance to cross-examine him. The court would not allow it.

He filed an appeal stating that it is an accused’s right to cross-examine witnesses. The court disagreed. They ruled that the right to cross examine is not absolute. The trial courts have the right to determine the scope of a cross-examination. If they do not feel that it is appropriate, they can prevent it as well.

The Supreme Court ruled that the preclusion of the testimony was not an abuse of discretion as a matter of law and upheld the conviction.
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Daniel D was indicted along with five other individuals for the murder in the first degree of George Simon. All of the defendants were acquitted of the murder charge but Mr. D was ultimately convicted of assault with intent to kill. For this conviction, he received a sentence of 5 to 10 years. Following his conviction, evidence surfaced that lead to an indictment of Mr. Di Lapo on several counts of burglary in the first degree and attempted robbery in the first degree. On the advice of his defense attorney, Mr. D plead guilty to one count of attempted robbery in the first degree. The Erie County Court sentenced him to a term of 5 to 15 years, to be served consecutively with his previous sentence. Later, this sentence was reduced to 5 to 11 years but was still required to be served consecutively. Mr. D appealed the sentence to the Appellate Division, Fourth Department. The Appellate Division subsequently affirmed the trial court’s decision unanimously.

The case then proceeded to the New York State Court of Appeals. The Court was asked to consider whether the elements of the alleged Robbery and the elements of the first degree attempted assault similar enough to prevent the defendant from receiving a double punishment as prescribed under New York law.

According to the New York Penal Code, robbery consists of the unlawful taking of someone’s personal property through force, coercion or threats. Attempted robbery in the first degree consists of an attempt to take property from someone else. The theft of property or possessions without the use of force is typically charged as larceny. If the perpetrator forcibly enters a building in order to steal, this constitutes burglary under New York law.

Mr. D’s attorney argued that only one act was charged as the assault and attempted robbery. This act concerned the defendant firing at one of the robbery victims with a handgun. The prosecution argued that the robbery and the assault comprised two separate and distinct acts.

The Appeals Court reexamined the trial record in determining their ruling. Based on court records, it appeared that the only evidence connecting Mr. D to the shooting was based on the testimony of a police officer. At trial, the officer stated that Mr. D and others had gone to the victim’s house on the premise of robbing him. Mr. D stated that he fired his weapon at the victim, but only after the victim took aim first. It was also determined that Mr. D wounded the victim but that the gunshot did not kill him. Following the shooting, the men subsequently fled without stealing anything. According to the prosecution, the forcible entry into the victim’s home established the first crime of attempted robbery while the shooting of the victim stemmed from a separate intent to cause his death.

In a previous decision, the Court of Appeals denied a writ of habeas corpus brought by Mr. Di Lapo. In his writ, Mr. D’s defense lawyer claimed that since he had been acquitted of murder, he could not lawfully be prosecuted for or convicted of any of the underlying felonies, including robbery or the additional count of attempted robbery. The Court held that the denial of Mr. D’s writ had no bearing on the issue at hand in the appeal currently before the court.

Citing Section 1938 of the New York Penal Code, the Court of Appeals found that the additional sentence handed down for Mr. D’s guilty plea to the attempted robbery charges was not outside the scope of the law. Essentially, the court held that based on the evidence, it could be concluded that the robbery and the assault were in fact two separate acts, each deserving separate punishment.

As such, Mr. D’s conviction and sentence were upheld.

A dissenting opinion was offered by Judge Bergan, in which he argued that the two events consisted of a unified act and that the language used in the indictment to describe each count actually detailed the same event. Judge Bergan argued for a broader view of Section 1938 and stated that the events that occurred were part of the same continuum and could not be distinguished as separate. As such, he held that the judgment should be reversed, contrary to the majority opinion of the Court of Appeals.

Facing a criminal trial for robbery or other serious crimes can be a frightening prospect but fortunately, Mr. D had the aid of an experienced defense attorney to protect his rights. Although he was ultimately unsuccessful in winning the appeal, he convinced at least one member of the appellate court that the case merited further consideration.
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On January 17, 2003, a man was found guilty by the County Court of Chenango County of murdering his wife. His motion to have this decision vacated, or set aside, was rejected without a hearing.

Let’s review the facts of the case. According to reports, a car accident occurred at the Guilford Lake in Chenango County on April 3, 2002. When the Sheriff’s Department rushed to the scene, they found a man standing at the top of an embankment and saw the taillights of a car submerged in the lake. When they interviewed the man, he said that his wife was driving when a deer ran into the road. She swerved and the car plunged into the lake. Her body was later found at the bottom of the lake, beside the car.

The results of the investigation however, did not match the man’s story. Suspicions began to be raised that he had staged the whole thing after killing his wife in their home. He was then found guilty of second degree murder and sentenced to 25 years to life in prison. The man appealed to the County Court to have their decision cancelled but this was denied without a hearing. The man then raised this with the Court of Appeals.

When the Court of Appeals reviewed the case, they found a lot of errors committed by the County Court that deprived the man of his right to a fair trial. Some of these errors were not objected to by the man’s side, and most of them, individually, were harmless. However, as it is the Court’s responsibility to ensure the right of every individual to a fair trial, it reviewed the case again and came to the conclusion that the County Court’s earlier decision should be reversed and a new trial be held.

What errors by the County Court did the Court of Appeals find? During the trial, the case presented by the prosecution was that the murder was the finale, the culmination of a long history of domestic violence by the man to his wife. In order to prove this, the prosecution presented 24 witnesses to testify that the man had abused his wife and had often threatened her and others. To introduce these testimonies, the prosecution stated that the evidence presented were proof of the man’s motives and intent to kill his wife. Some witnesses said they had seen the man abuse his wife and others said that they remembered the wife saying certain things that revealed how her husband had abused her in the past.

At first, the County Court was hesitant about accepting the testimonies. In deciding whether or not to admit evidence, a court should determine the worth of the evidence and balance it against the possibility of biasing the jury against the suspect. In many cases involving domestic violence, proof of previous abuses against the victim is admitted on the ground that it establishes the suspect’s motive or to establish the relationship between the suspect and the victim. Nevertheless, just because this has been done in a lot of cases does not mean that it should hold true for every case.

In this case, although the testimonies presented showed that man’s tendency to abuse against his wife, there was no discussion about the worth of this evidence to the case or the possible prejudice to the man. The Court of Appeal noted that when a suspect’s previous acts of abuse are focused, there is a potential that the jury will give it too much importance, even though other proofs are weak.

The wife’s diaries, from as far back as six years before the incident, were also included as evidence. However, according to the Court of Appeals, a murder victim’s diaries are “clear hearsay” are cannot be accepted in court as evidence of a suspect’s motive.

A lot of importance was also given to a report by the Michigan State Police on a submerged motor vehicle accident study conducted in 1991, involving 31 tests on 20 passenger vehicles and a school bus. This report was presented by a sheriff who had undergone a month of advanced accident reconstruction training but had never personally investigated an underwater accident. He testified to the Court again and again that the suspect’s story was inconsistent with the State report and was impossible. Testimonies by experts in the field are usually acceptable as evidence in court. Nevertheless, it cannot be the “principal basis” for an opinion in court.

Lastly, the man challenged certain actions by the prosecutor. The Court of Appeals found that the prosecutor repeatedly expressed his personal opinions of the man and said his testimony and those of his witnesses were “lies”. Given all this, the Court of Appeals reached its decision that the man had not been given a fair trial and should be given a new one.
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