People v. Bornholdt
| Decision Date | 23 October 1973 |
| Parties | , 305 N.E.2d 461 The PEOPLE of the State of New York, Respondent, v. Robert BORNHOLDT, Appellant. The PEOPLE of the State of New York, Respondent, v. Albert VICTORY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Herald Price Fahringer and Lawrence A. Schulz, Buffalo, for Albert Victory, appellant.
Gerald Zuckerman, New York City, for Robert Bornholdt, appellant.
Frank S. Hogan, Dist. Atty. (Lewis R. Friedman and Michael R. Juviler, New York City, of counsel), for respondent.
At about 1:00 a.m. on October 7, 1968, a Cadillac operated by Albert Victory, with Robert Bornholdt as a passenger, sped through a red light on East 54th Street near Fifth Avenue in New York City. Patrolman John Varecha, a 25-year-old uniformed police officer on duty in the area, commandeered a taxicab and pursued the vehicle to Arthur's Discotheque on East 54th Street near Third Avenue. In the course of investigating the incident, an altercation ensued between Varecha and Victory and Bornholdt, during which Bornholdt shot Varecha four times at close range. He died enroute to Bellevue Hospital.
Indicted for intentional murder (Penal Law, § 125.25, subd. 1) (Bornholdt) and felony murder (Penal Law § 125.25, subd. 3 ()) (Bornholdt and Victory), defendants were convicted of the crimes charged after a joint trial before a jury. Bornholdt was sentenced to concurrent terms of imprisonment of 25 years to life, and Victory was sentenced to a term of 25 years to life. The Appellate Division unanimously affirmed and the appeals are before us by leave of an Associate Judge of this court.
On Victory's appeal the principal issues are whether guilt was proven beyond a reasonable doubt, whether the affirmative defense in the felony murder statute is constitutional, whether the court properly denied a severance, and whether the court's rulings limiting the use of prior statements on cross-examination were proper.
On Bornholdt's appeal, the principal issues concern his competency at the time of trial, and at the time the crime was committed. 1
The testimony at trial established that Patrolman Varecha arrived at Arthur's Discotheque as the defendants were about to enter. He asked them who had been driving the Cadillac, which was parked at the curb, and demanded to see a registration and driver's license. 2 The defendants were evasive and unco-operative. They then started up the steps to the discotheque, but Varecha blocked their entrance with his nightstick. The officer, holding Victory's arm to prevent him from entering the discotheque, threatened to have the car towed away. Once again he asked who was driving and requested a registration and a driver's license. Victory grabbed Varecha by the lapels of his raincoat and stated, 'Don't you touch me', or words to that effect. An altercation ensued, during which Victory kneed the officer in the groin, doubling him over. Victory, new joined by Bornholdt, began punching and kicking the officer. Varecha fought back with his nightstick, striking the defendants about the head. Crouched over in pain, he drew his service revolver and told the defendants they were under arrest. Victory slowly backed up in a westerly direction toward Lexington Avenue, his arms outstretched, imploring the officer to give him a 'break'. Varecha told him to stop and get against a car in the street, but Victory kept backing up. Bornholdt was to the rear of the officer. Varecha again told the defendants that they were under arrest, and ordered them to get against an alley wall. A citizen came to the aid of the officer and was ordered out of the alley by the defendants. Victory, facing the alley wall with his hands extended, swung around and started fighting with the officer. Bornholdt jumped the officer from behind, drew a .32 caliber pistol, and in the course of the continuing altercation, discharged eight shots, four of which struck the officer, fatally wounding him. Bornholdt ran out of the alley, followed seconds later by Victory, who at first emerged slowly, his back to the westerly wall of the alley, arms extended. After a short chase, both defendants were apprehended by off-duty patrolmen who had been at the discotheque.
Turning to defendant's first point, he contends that he was not proven guilty beyond a reasonable doubt. We conclude that there was ample evidence, if believed, to prove all the elements of felony murder.
There was eyewitness testimony from which the jury could reasonably find that Victory kneed the officer in the groin (assault in the second degree, Penal Law, § 120.05, subd. 3) 3 and that Bornholdt joined in the assault; that Varecha drew his service revolver and told the defendants that they were under arrest (Code Crim.Proc., § 177, subd. 1) 4; that both defendants continued to resist the restraint sought to be imposed by the officer and got away (escape in the second degree, Penal Law, § 205.10) 5, and that in the course of and in furtherance of getting away, Bornholdt shot and killed the officer, a criminal act, the responsibility for which Victory, a participant in the underlying felony, must share. (Murder, Penal Law, § 125.25, subd. 3.) 6
In a related point, Victory challenges the court's supplemental instruction concerning the felony murder charge. He refers to the court's supplemental instruction that 'flight after a lawful arrest by a policeman for the felony of assault in the second degree does constitute the crime of escape in the second degree, whether that flight takes place before or after the shooting.' The supplemental instruction was given in partial response to the following question asked by the jury forman: 'As a matter of law, does the fact of flight after the shooting itself establish escape in the second degree after an arrest has been made for felony assault?' He argues that the court erroneously conveyed the impression that the jury could convict of felony murder even if it determined that the defendant's intent to escape arose after the shooting.
The governing principle is clear: a person may be convicted of felony murder only if it be proved that he or another participant in one of the enumerated felonies killed 'in the attempted execution of the unlawful end.' (People v. Wood, 8 N.Y.2d 48, 51, 201 N.Y.S.2d 328, 332, 167 N.E.2d 736, 738; see also, People v. Joyner, 26 N.Y.2d 106, 109, 308 N.Y.S.2d 840, 842, 257 N.E.2d 26, 27; Penal Law, § 125.25, subd. 3.) The Trial Justice, obviously cognizant of this principle, repeatedly, both in the main charge and in the supplemental charge, instructed the jury that the shooting must have occurred 'during the course of', 'in furtherance of' and 'while' committing the crime of escape. In sum, the court's charge sufficiently informed the jury that if the defendant did not intend to escape at the time the killing occurred, it could not convict of felony murder.
Defendant next raises a constitutional challenge to the affirmative defense provisions of the felony murder statute. Section 125.25 (subd. 3) of the Penal Law provides that in a felony murder prosecution in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
'(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
'(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
'(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
'(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.'
The burden of proof for affirmative defenses is specified in section 25.00 (subd. 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.' That is to say, the defendant has the burden of going forward with the evidence on the issue as well as the burden of persuasion thereon, but merely by a fair preponderance of the evidence.
Defendant asserts that the statutory affirmative defense violates his constitutional privilege against self incrimination. Specifically, he contends that the affirmative defense provision impels a defendant to take the witness stand and, in effect, requires him to disprove any connection with the killing. While couched in terms of the Fifth Amendment, defendant's argument is more in the nature of a constitutional due process challenge with Fifth Amendment overtones.
The revised Penal Law worked a significant change in prior law by providing an accomplice of a felon who kills an affirmative defense to a felony murder charge. Under the former Penal Law, none of the above-enumerated elements constituted a defense to the crime of felony murder where the defendant had the requisite felonious involvement. (See, e.g., People v. Michalow, 229 N.Y. 325, 128 N.E. 228; People v. Friedman, 205 N.Y. 161, 98 N.E. 471; see, also, Comment, Affirmative Defenses Under New York's New Penal Law, 19 Syracuse L.Rev. 44.) The harshness of the rule in particular cases was apparent, and, hence, the instant provisions were incorporated in the revised Penal Law affording an accomplice of a felon who kills an opportunity to 'fight his way out' of a felony murder charge.
The affirmative defense provisions, generally, of the Penal Law altered the common-law concept of how such defenses were to be established. Traditionally, the defendant asserting a conventional affirmative...
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