People v. Coates
| Decision Date | 24 July 1978 |
| Citation | 407 N.Y.S.2d 866,64 A.D.2d 1 |
| Parties | The PEOPLE, etc., Respondent, v. Larry COATES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Brooklyn (Peter A. Norling, Brooklyn, of counsel), for respondent.
Before TITONE, J. P., and RABIN, GULOTTA and MARGETT, JJ.
The appellant stands convicted of the felony murder (see Penal Law, § 125.25, subd. 3) of an individual who won a substantial amount of money in a local dice game. The prosecution proceeded on the theory that the appellant and two others sought to forcibly retake their losses and that, in the course of this robbery, the luckless dice winner was mortally wounded. The alleged robbery was set forth as constituting the underlying felony. The principle issues raised on appeal are: (1) whether the trial court committed reversible error in its charge on the affirmative defense which is available in felony murder prosecutions "in which the defendant was not the only participant in the underlying crime" (Penal Law, § 125.25, subd. 3) and (2) whether the forcible retaking of one's gambling losses constitutes the crime of robbery? Both inquiries should be resolved in the affirmative.
On July 28, 1972 the appellant participated in a street-side dice game. The deceased won a substantial amount of money in the game. However, there is disputed testimony concerning the extent of the victim's winnings and the appellant's losses. Amidst assertions that the victim had changed the dice, the appellant and two other persons who had participated in the game, attempted to recover their losses. The appellant grabbed the victim around the neck, dragged him across the street and held him while his two abettors attempted to go through the victim's pockets. When the victim resisted, he was stabbed by the appellant's accomplices. The three unsuccessful gamblers then fled the scene, apparently without having recovered their losses. The following day the victim died from the stab wounds. There was no testimony that the appellant either possessed or used a knife. Rather, there was some evidence that he attempted to prevent the stabbing and received several cuts for his efforts.
In its charge to the jury the court, although not requested to do so, instructed the jury on the affirmative defense which is available in felony murder prosecutions where the defendant is not the only participant in the underlying felony. In relating the appellant's burden of proving the affirmative defense to the prosecution's more pervasive burden of proving guilt beyond a reasonable doubt, the court charged, in part
This portion of the charge was excepted to on the ground that the "burden of proof never shifts from the prosecutor to the defendant."
Subsequently, the jurors interrupted their deliberations and requested to "hear the part where the defendant has to prove that he did not know if there was a weapon." At this juncture, defense counsel specifically requested that the court not recharge on the affirmative defense. This request was premised in defense counsel's statement that his strategy was simply to raise a reasonable doubt as to the appellant's guilt. Defense counsel alternatively requested that the court clarify to the jury that the burden of proof never shifts to the defendant. In recharging the jury, the court reiterated its instruction on the affirmative defense and further stated:
Defense counsel duly excepted to the court's response to the jury's request of what the "defendant has to prove".
The appellant was found guilty of felony murder and was sentenced as a predicate felon to an indeterminate term of 15 years to life imprisonment. The judgment should be reversed and a new trial ordered.
THE IMPROPER CHARGE ON THE AFFIRMATIVE DEFENSE TO FELONY MURDER.
The trial court did not err in exercising its discretion to charge on the affirmative defense to felony murder. The evidence adduced at the trial provided a firm foundation for such a charge. The trial record indicates that defense counsel did cross-examine prosecution witnesses concerning several elements of the affirmative defense (e. g., whether the appellant had stated that he did not know that his accomplices had weapons and whether he attempted to prevent the stabbing (see Penal Law, § 125.25, subd. 3, pars. (c), (d))). Unlike People v. Cofer, 48 A.D.2d 818, 370 N.Y.S.2d 64, there was no substantial question as to whether the appellant participated in the underlying crime. Rather, the significant issue concerns whether the appellant, who did not stab the deceased, may nevertheless be held liable for the victim's death. Here, charging the affirmative defense was entirely appropriate and beneficial to the appellant. However, the charge which was given was so ineptly phrased as to constitute reversible error.
Whenever a trial court charges a jury on a defendant's burden of establishing an affirmative defense, particular care must be taken lest the jury become confused as to the burden of proof necessary to support a conviction. The defendant need only establish an affirmative defense by a preponderance of the evidence (Penal Law, § 25.00, subd. 2). However, this in no way diminishes the pre-existing and more pervasive requirement that the prosecution establish guilt beyond a reasonable doubt. It is essential that the jury understand that the assertion of an affirmative defense does not detract from the prosecution's burden.
Despite defense counsel's repeated requests that the above principle be unambiguously explained to the jury, the trial court entirely failed to clearly instruct the jury that the prosecution's burden to prove guilt beyond a reasonable doubt never shifts. Rather than charging that the jurors were to consider the affirmative defense only if they had first been satisfied that the appellant's guilt was established, the court improperly charged that the burden of proving guilt is on the prosecution "except where an affirmative defense is raised". That charge was necessarily confusing and misleading. Nor was the prejudicial defect cured by the overall context of the charge (cf. People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784).
FORCIBLE RETAKING OF GAMBLING LOSSES AS A ROBBERY.
Robbery may be simply defined as a forcible larceny (see Penal Law, § 160.00). A person commits larceny when, "with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof" (Penal Law, § 155.05, subd. 1). The somewhat novel question here raised is whether the retaking of one's gambling losses can constitute a larceny. The appellant argues that there is no larceny on the interrelated grounds that: (1) the winner of gambling proceeds is not an "owner" because title to the winnings does not pass; and (2) there is no felonious intent. Although these arguments have been advanced in other jurisdictions, they are not persuasive and are necessarily contrary to public policy.
As pointed out in the concurring opinion of Mr. Justice TITONE, it is the long settled law in New York, and most other American jurisdictions, "that an individual who wins money or other consideration from another in an illegal game of chance does not acquire title to the winnings". * However, the narrow question of who possesses legal title is substantially irrelevant to a prosecution for larceny. The larcenous act is no more than the wrongful taking of property from an owner thereof (Penal Law, § 155.05). Nowhere is it required that the depossessed owner also be the title holder of the property.
The term "owner" is defined in subdivision 5 of section 155.00 of the Penal Law as follows:
The key factor in the above definition is the actual possession of the property. Part of the commentary on the...
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