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On 21 January 1997, an omnibus motion was filed

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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