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Justification Defense is Not Available to a Felony Murder Charge – People v. Walker, 908 N.Y.S.2d 419 (N.Y. App. Div. 2010)


Defendant Walker was indicted for several felonies including murder in the second degree (felony murder) (N.Y. Pen. Law §  125.25[3] ), two counts of kidnapping in the second degree (N.Y. Pen. Law §  135.20), robbery in the first degree (N.Y. Pen. Law §  160.15[2] ), criminal possession of a weapon in the second degree (N.Y. Pen. Law §  265.03[1] ), and two counts of criminal possession of a weapon in the third degree (N.Y. Pen. Law §  265.02[1], [4]).  He was ultimately convicted of several crimes including felony murder. As part of his defense, he claimed justification.  However, the trial judge disallowed the defense of justification. On appeal, Walker argues that he should have been allowed to argue justification.

Justification, also referred to as self-defense, is an oft used defense to criminal charges such as murder and assault.  It an affirmative defense governed by N.Y. Pen. Law §  35.15.  The law allows a person to use physical force against another if he possesses an honest and reasonable belief that he is facing unlawful physical force or an imminent threat of unlawful physical force.  In the absence of an honest and reasonable belief of that he is facing unlawful force or a threat, the use of such physical force would be a crime.

While it is well-established that a person has the legal right to use physical force that would otherwise amount to murder or assault, the question in his case is whether a person has the right to use physical force that would otherwise amount to felony murder.

Felony murder, or second degree murder, occurs when someone dies during the commission of a felony such as kidnapping, rape, or assault.  The person facing the charge of felony murder would be the person or persons who were in the process of committing the felony if that person did not actually cause the death.  The rationale is that the death would never have occurred had the underlying felony not occurred.  N.Y. Pen. Law §  125.25.

In Walker, while high on cocaine and alcohol, defendant Walker kidnapped and robbed multiple people at gunpoint.  He eventually allowed one of the kidnapped victims to leave so that he could bring back money.  The victim returned with his stepson, who was armed.  There was an exchange of gunfire.  Defendant Walker shot the stepson five times and killed him.

During the trial, the Walker’s attorney requested an instruction related to the defense of justification.  The court denied the request.  Defendant Walker was convicted of felony murder in the death of the stepson. On appeal, the defendant argued that the trial court erred giving an instruction regarding felony murder.  Walker’s position was that when the stepson ran into the apartment with a gun, Walker had to right to defend himself from the imminent danger posed by the stepson.

The appeals court disagreed with Walker, reasoning that while the defense of justification may be available to an underlying felony offense in a felony murder prosecution, it is never a defense to felony murder itself. In other words, in the trial, if the justification defense was allowed at all, it would have been allowed as a defense to the charges of kidnapping or robbery.  With a successful justification defense for the kidnapping or robbery charge, the charge of felony murder would have not have been appropriate. In this case, of course, justification was not an available defense to the kidnapping or robbery charges.

If the stepson had killed Walker instead of Walker killing he stepson, the stepson would probably have had a legitimate justification defense as we he was arguably defending others against Walker who had committed the crimes of kidnapping and robbery.

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