People v. Benson

• Decision Date: 18 June 1984
• Citation: 125 Misc.2d 843,480 N.Y.S.2d 811
• Parties: PEOPLE of the State of New York v. Javonne BENSON.
• Court: New York Supreme Court

Page 811

480 N.Y.S.2d 811

125 Misc.2d 843

PEOPLE of the State of New York v. Javonne BENSON.

Supreme Court, Kings County.

June 18, 1984.

Bert Nisonoff, Brooklyn, for defendant.

Elizabeth Holtzman, Dist. Atty., Kings County, (Michael Timko, Asst. Dist. Atty., of counsel), for the People.

ALFANO, Justice.

Defendant, as part of his omnibus motion, moves to dismiss the indictment on the ground that Penal Law 125.25, subdivision 3 (Felony Murder Statute) is unconstitutional. ¹ The People oppose dismissal. ²

Defendant has been indicted for Murder in the Second Degree (felony murder), Robbery in the First Degree (two counts), and Robbery in the Second Degree.

It is well settled that, "There is a strong presumption that a statute duly enacted by the Legislature is constitutional ... the invalidity of the law must be demonstrated beyond a reasonable doubt ..." (People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 253 N.E.2d 202). Furthermore, courts of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable (Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539).

With these principles in mind, the court will now address each of defendant's contentions.

AFFIRMATIVE DEFENSE

Defendant claims that the affirmative defense established in section 3(a)-(d) of Penal Law 125.25 violates due process of law. Although defendant does not cite any cases in support of this proposition, the court presumes that defendant is referring to Mullaney v. Wilbur 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.

Before the decision in Mullaney, the Court of Appeals held that the affirmative defense to felony murder does not violate due process of law (People v. Bornholdt, 33 N.Y.2d 75, 83-86, 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). After Mullaney, the Appellate Division, Third Department (People v. Donovan, 53 A.D.2d 27, 385 N.Y.S.2d 385), the Appellate Division, Fourth Department (People v. Kampshoff, 53 A.D.2d 325, 385 N.Y.S.2d 672) and the County Court, Dutchess County (People v. Wise, 94 Misc.2d 943, 405 N.Y.S.2d 965--Judge Rosenblatt) held that the affirmative defense in subdivision 3 of Penal Law 125.25 does not violate due process. Federal courts which have addressed the New York Statute after Mullaney, have also upheld its constitutionality (Victory v. Bombard, 2nd Cir., 570 F.2d 66, 70 cert. den. sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109; U.S. ex rel. Robinson v. Warden, 419 F.Supp. 1, 4-6 affd, 2nd Cir., 538 F.2d 313).

For the reasons stated in the above-mentioned cases, the court finds that the affirmative defense in subdivision 3 of Penal Law 125.25 is constitutional, and does not violate defendant's due process rights.

LACK OF ELEMENT OF INTENT

Defendant claims that PL 125.25(3) is unconstitutional in that it violates his due process and equal protections of the law rights because the statute does not contain as an element the intent to kill. Although not expressly argued, the court will consider two arguments in this regard. The first is that the lack of the element of intent is in and of itself violative of due process. The second is that the law presumes intent from the commission of the At common law intent to kill was not an element of felony murder (Commonwealth v. Redline, 391 Pa. 486, 493-495, 137 A.2d 472, 475-476; State v. Doucette, 143 Vt. 573, 577-580, 470 A.2d 676, 679-680). The rule has been severely criticized by many commentators (12 N.Y.Law Forum 565, 586-590; 33 Fordham Law Review 173, 196-199; 51 Kentucky Law Review 59, pp. 75-76; 65 Col.Law Quarterly 1496, 1499; Criminal Law, LaFave and Scott, 1972 p. 560). The rule has also been severely criticized by various courts (People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 13 A.L.R. 4th 1180; Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550; People v. Doucette, 143 Vt. 573, 470 A.2d 676, supra; People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697). The criticism centers around the fact that, under modern penology, a person should only be responsible for his mens rea, and felony murder has no mens rea. As a result of the criticism, Hawaii, Kentucky and England (the originators of the felony murder doctrine) abolished the felony murder doctrine (see State v. Aaron, 409 Mich. 672, 299 N.W.2d 304, supra, and State v. Doucette, 143 Vt. 573, 470 A.2d 676, supra). Some courts viewing the felony murder doctrine as harsh have read into their particular statute a statutory element of "malice" or "malice aforethought" (Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550, supra; Evans v. State, 28 Md.App. 640, 349 A.2d 300 affd. 278 Md. 197, 362 A.2d 629; State v. Galloway, 275 N.W.2d 736 Grant v. State, 60 Tex CR.R. 358, 132 S.W. 350; State v. Millette, 112 N.H. 458, 299 A.2d 150; Commonwealth v. Watkins, 375 Mass. 472, 379 N.E.2d 1040; People v. Aaron, supra; State v. Doucette, supra).

underlying felony in violation of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 supra, and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

Justice White, writing for a majority of the Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, stated that the lack of the element of intent in felony murder is a major factor in determining whether the death penalty imposed upon a non-shooter is violative of his Eighth Amendment right to be free from cruel and unusual treatment. Indeed, Justice White, in a concurring opinion in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, held that the lack of the element of intent in felony murder rendered the death penalty, even for the actual shooter, violative of the Eighth Amendment (cf. Justice Blackmun, footnote No. 2, p. 614, 98 S.Ct. at p. 2969, and Justice Rehnquist dissenting pp. 635-636, 98 S.Ct. at pp. 2976-2977, taking opposite view). Nonetheless, Justice White stated at page 626, 98 S.Ct. at p. 2984:

"Under those circumstances the conclusion is unavoidable that the infliction of death upon those who had no intent to bring about death of the victim is not only grossly out of proportion to the severity of the crime but also fails to contribute significantly to acceptable or, indeed, any perceptible goals of punishment.

This is not to question, of course, that those who engage in serious criminal conduct which poses a substantial risk of violence, as did the present petitioners, deserve serious punishment regardless of whether or not they possess a purpose to take life. And the fact that death results, even unintentionally, from a criminal venture need not and frequently is not regarded by society as irrelevant to the appropriate degree of punishment ..."

Justice White thus recognized that imposing punishment was proper but felt that imposing the death penalty was improper.

This court, however, does not have the liberty to interpret the statute as requiring intent, or "malice" or "malice aforethought." The Court of Appeals and the Appellate Division have clearly stated that these are not elements of the New York Statute (People v. Berzups, 49 N.Y.2d 417, 426 N.Y.S.2d 253, 402 N.E.2d 1155; People v. Marwig, 227 N.Y. 382, 387 All the courts which have addressed this issue have ruled that the lack of the element of intent does not violate due process of law (People v. Root, 9th Cir., 524 F.2d 195, 196-197, cert. den. 423 U.S. 1076, 96 S.Ct. 861, 47 L.Ed.2d 86; Commonwealth v. Redline, 391 Pa. 486, 491-493, 137 A.2d 472, 473-474; Brown v. State, 448 N.E.2d 10, 15 People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697). The rationale was aptly stated in People v. Root, supra, where the court said at page 197:

                125 N.E. 535;  People v. Murray, 92 A.D.2d 617, 459 N.Y.S.2d 810;  People v. Jones, 81 A.D.2d 22, 45, 440 N.Y.S.2d 248).   Thus, in New York, intent to kill is not an element of felony murder
                

"Nothing in the United States Constitution deprives legislatures of the power to impose upon those who kill their victims in the course of inherently dangerous felonies the same sanctions they choose for those who kill their victims after meditation sufficient to satisfy the jurisdiction's definition of first-degree murder."

It is for the Legislature and not for the courts to determine the proper elements of felony murder. Similar thoughts were expressed by the California Supreme Court in People v. Burton, 6 Cal.3d 375, 378, 99 Cal.Rptr. 1, 491 P.2d 793, where the court said:

"This court has reiterated numerous times that 'The purpose of the felony-murder rule is to deter felons from killing negligently or accidently by holding them strictly responsible for killings they commit.' (People v. Washington 62 Cal.2d 777, 781 ). The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof."

The court therefore finds that the lack of the element of intent in felony murder does not violate due process of law or equal protection.

The second due process argument is that the law conclusively presumes intent from the commission of the underlying felony. It is argued that this violates the principles set forth by the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, supra and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, supra. In...