People v. Archie

• Decision Date: 05 February 1976
• Citation: 380 N.Y.S.2d 555,85 Misc.2d 243
• Parties: The PEOPLE of the State of New York v. Robert ARCHIE, Defendant.
• Court: New York Supreme Court

Page 555

380 N.Y.S.2d 555

85 Misc.2d 243

The PEOPLE of the State of New York v. Robert ARCHIE, Defendant.

Supreme Court, Erie County.

Feb. 5, 1976.

Edward C. Cosgrove, Dist. Atty. (Michael R. Stebick, Buffalo, of counsel), for the People.

Albrecht, Maguire, Heffern & Gregg, Buffalo, for defendant.

MEMORANDUM

LEON N. ARMER, Judge.

Defendant Archie, charged with Robbery, First Degree, allegedly accomplished by 'display of what appeared to be a sawed-off shotgun' (Penal Law 160.15, subd. 4) moves to dismiss the charge as contrary to the constitutional principles pronounced by the United States Supreme Court in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508. Winship held that the Due Process Clause protected an accused against conviction except upon proof beyond a reasonable doubt. Mullaney struck down the burden imposed by Maine law upon a defendant charged with intentional homicide to prove manslaughter in that he killed in the heat of passion on sudden provocation by a fair preponderance of the evidence or face possible conviction of murder upon the conclusive presumption of implied malice aforethought. Defendant here claims that the statutory scheme forbidding robbery with 'display * * * (of) what appears to be a (firearm)' (PL 160.15, subd. 4; PL 160.10, subd. 2(b)) denies him due process of law by:

(1) '(D)rawing a distinction between two crimes (robbery in the first degree (PL 160.15, subd. 4) and robbery in the second degree (PL 160.10, subd. 2(b))) while failing to require the prosecution to '(E)stablish beyond a reasonable doubt the fact upon which (the distrinction (sic)) turns', Mullaney, (supra, at 698, 95 S.Ct. 1881)' and

(2) 'The statutory scheme creates a presumption which in operation and effect requires a defendant to Disprove the degree of culpability.' (Defendant's Memorandum of Law, pp. 4--5, emphasis in original).

The defense claims that the reasoning in People v. Balogun, 82 Misc.2d 907, 372 N.Y.S.2d 384, and this court notes in similar vein People v. Davis, 49 A.D.2d 437, 376 N.Y.S.2d 266, decided December 5, 1975 and People v. Woods, 84 Misc.2d 301, 375 N.Y.S.2d 750, decided September 30, 1975, which void the New York State affirmative defense provision to reduce murder to manslaughter when 'heat of passion' appears (PL 125.25, subd. 1(a)) must be extended to the robbery statutes under which this indictment was returned. The Court of Appeals has yet to speak on this subject, and it should be worthy of note although of little apparent moment that the Maine law found invalid imposed a two-pronged burden on a defendant, I.e., a burden of proof on the affirmative defense, plus a presumption of malice aforethought to overcome. No presumption was imposed on a defendant to a charge of homicide in New York.

The New York statutes called to question here are as follows:

' § 160.15 Robbery in the First Degree

A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is as affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.'

' § 160.10 Robbery in the Second Degree

A person is guilty of robbery in the second degree when he forcibly steals property and when:

2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.'

' § 25.00 Defenses; burden of proof

2. When a defense declared by statute to be an 'affirmative defense' is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.'

The Maine law found wanting in Mullaney (supra) was as:

'stated succinctly: Absent justification or excuse, all intentional or criminally reckless killings are felonious homicides. Felonious homicide is punished as murder--I.e., by life imprisonment--unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter . . .. The issue is whether the Maine rule requiring the defendant to prove that he acted in the heat of passion on sudden provocation accords with due process.' (Mullaney, supra, at 691--692, 95 S.Ct. at 1886).

The Court there found:

'First, the fact at issue here--the presence or absence of the heat of passion on sudden provocation--has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide. And, second, the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact.' (Mullaney, supra, at 696, 95 S.Ct. at 1888).

While the Supreme Court used the term 'degree of culpability' in its decision, it appears obvious that it has been long recognized that there is a distinction in the 'nature of culpability' between murder and manslaughter, and these offenses have been deemed to be generically different. It was Maine's attempt, although not necessarily New York's (See Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 125.20, pp. 391--393), to blend the two culpably differing offenses into one crime of 'felonious homicide', and to remove the burden from the prosecution of proving the element of the intent of the actor that has been found violative of due process. As was noted in the concurring opinion of Justice Rehnquist, it was Maine's 'redefinition of homicide' that 'effect(ed) an unconstitutional shift in the State's traditional burden of proof.' (Mullaney, supra, at 706, 95 S.Ct. at 1893).

No intent by the court in Mullaney (supra) to strike down all affirmative defenses appears. It was in fact noted by Justice Rehnquist:

'I agree with the Court that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against a defendant. I see no inconsistency between that holding and the holding of Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In the latter case this Court held that there was no constitutional requirement that the State shoulder the burden of proving the sanity of the defendant.' (Mullaney, supra, at 705, 95 S.Ct. at 1893).

In Leland, the burden was approved even though it required the defendant to prove an insanity defense beyond a reasonable doubt.

An attack of the same nature of defendant herein directed to the New York entrapment affirmative defense (PL 40.05) was made in People v. Long, 83 Misc.2d 14, 372 N.Y.S.2d 389. In denying an application by defendant to strike down the affirmative burden of proof imposed upon one claiming entrapment, the court there noted:

'The presence or absence of entrapment, however, in no way affects the prosecution's duty to prove beyond a reasonable doubt every element of the crime charged . . .. In fact, the jury does not reach the entrapment question, unless it finds the defendant guilty beyond a reasonable doubt of all the elements of the crime before them.' (People v. Long, supra, at 18--19, 372 N.Y.S.2d at 393).

The Supreme Court has, in fact, declined the opportunity to pass upon the same question. (People v. Laietta, 30 N.Y.2d 68, 330 N.Y.S.2d 351, 281 N.E.2d 157, cert. den. 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809). It has further so acted in declining to review New York's affirmative defense to felony murder. (PL 125.25, subd. 3; People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. den. Sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).

As was noted in People v. Davis, 49 A.D.2d 437, 376 N.Y.S.2d 266, in commenting on People v. Laietta (supra) and People v. Bornholdt (supra):

'(I)n both cases the court was dealing with a defense unknown to the common law which had been created solely for the benefit of the defendant. It did not constitute a shifting of the burden of proof on an issue that had once been an element of the crime and thus previously a part of the prosecution's case to establish guilt beyond a reasonable doubt.' (People v. Davis, 49 A.D.2d 437, 441, 376 N.Y.S.2d 266, 270).

To speak first to the presumption claimed by defendant to operate against him herein: in fact no such presumption exists. It is true that the Governor's memorandum approving Chapter 1012 of the Laws of 1969 enacting the robbery statutes set forth above did use language as follows:

'Specifically, the bill provides that a firearm displayed during the commission of a burglary or a robbery is presumed to be loaded . . .' (NY Legis Annual, 1969, p. 567).

This message used the term 'presumption' in an unfortunate and erroneous manner. As was noted in People v. Player, 80 Misc.2d 177, 180, 362 N.Y.S.2d 773, 778: 'Proceeding upon Their presumption that a weapon displayed under such circumstances is loaded, the Legislature decreed . . .' (emphasis supplied). No presumption as such was cast into the judicial process to assist the prosecution in establishing the act forbidden, I.e., 'display of what appears to be a (firearm).' (cf. People v. Felder, 39 A.D.2d 373, 376, 334 N.Y.S.2d 992, 995).

Thus contrary to the...