People v. Codarre

• Citation: 245 N.Y.S.2d 81,20 A.D.2d 98
• Parties: The PEOPLE of the State of New York, Respondent, v. Edwin CODARRE, Appellant.
• Decision Date: 16 December 1963
• Court: New York Supreme Court — Appellate Division

Page 81

245 N.Y.S.2d 81

20 A.D.2d 98

The PEOPLE of the State of New York, Respondent, v. Edwin CODARRE, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 16, 1963.

O. John Rogge, New York City, for appellant.

Raymond C. Baratta, Dist. Atty. (Peter L. Maroulis, Asst. Dist. Atty., of counsel), for respondent.

Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HILL, JJ.

BELDOCK, Presiding Justice.

On August 26, 1943, defendant, then 13 years of age, was indicted for the first-degree murder of Elizabeth Voight, then about 10 years old.

The principal question involved is: (a) whether on November 23, 1943, when the defendant pleaded guilty to murder in the second degree, he had a 'plausible defense' (legal insanity by reason of epilepsy); and (b) whether insufficient consideration was given to such defense. If he had such a defense, his present application to vacate the judgment of conviction would have to be granted and a new trial ordered. Such vacatur now would result in a dismissal of the indictment because, while under the law in effect in 1943 the then 13-year-old defendant could have been convicted of murder in the first degree and sentenced to death, under the law in effect since 1948 (L.1948, ch. 554; Penal Law, § 486, subd. 3) he would have to be treated as a juvenile delinquent. Although the 1948 amendment is not retroactive and cannot be applied in favor of an offender tried and sentenced to imprisonment before its enactment (People v. Codarre, 10 N.Y.2d 361, 223 N.Y.S.2d 457, 179 N.E.2d 475), the amendment is applicable to cases tried thereafter, even for offenses previously committed (People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197).

It appears that on or about July 21, 1943 defendant began working in the kitchen of a boys' camp in the Town of East Fishkill, Dutchess County. Shortly after he came to the camp, he met another boy who lived about one and a half miles away. Defendant visited the other boy twice. On the occasion of the second visit he met the boy's sister, Elizabeth (the girl whom defendant later killed). On that occasion, defendant and the other body, during the night, broke into a gas station and stole some cigarettes and candy. Defendant stayed at the boy's house overnight; they boy's parents were not at home; defendant 'petted' with Elizabeth during this visit.

On August 13, 1943 defendant went to the boy's house, intending to play with him. The boy was not home, but Elizabeth was. While Elizabeth and defendant walked along a country road in the direction of the farm where her brother happened to be, defendant suggested to her the idea of having intercourse, whereupon she started to run. He grabbed her wrist; she started to yell. He then choked her, hit her in the neck and throat, first with his hand and fist and then with a rock. After he had removed her panties and shoes and had thrown them in the field, he raped her. Upon the conclusion of the act he rolled her over an embankment and put weeds over her so that she would not be noticed. Then he ran back to camp, set the table, and partook of a meal.

On the next day (August 14, 1943) State Troopers came to the camp and questioned defendant. He was arrested; and, in a 14-page closely-typed statement, he made a complete confession to the District Attorney. He furnished the District Attorney with all the details of the incident; showed him where Elizabeth's body was; and where her panties and shoes had been thrown.

On August 15, 1943, at the Dutchess County Jail, the defendant was questioned by two psychiatrists--Drs. Cheney and Grover. The examination (as transcribed) covers 27 typewritten pages. Defendant described to the psychiatrists all the details of the incident in the same manner in which he had described them to the District Attorney on the previous day.

On August 20, 1943, at the District Attorney's request, an electroencephalogram (hereafter called an 'EEG') was taken by Dr. Pacella. There is a dispute as to whether the EEG showed that defendant was an epileptic. Dr. Laidlaw (ultimately a witness for the People) was of the opinion that it was suggestive, but not conclusive, of epilepsy. Dr. Banay (for the defense) was of the opinion that it was indicative of epilepsy.

On August 26, 1943 defendant was indicted for the crime of murder in the first degree.

On October 19, 1943, at the request of Dr. Banay, a defense psychiatrist, defendant was examined neurologically by Dr. Laidlaw. That examination was essentially negative. At Dr. Laidlaw's request, an EEG was taken by Dr. Hofer. That EEG indicated that defendant was an epileptic. On November 21, 1943, after a conference between Dr. Banay and Dr. Laidlaw, the latter consented to testify for the defense at the trial.

The trial commenced on November 15, 1943. By November 22, 1943 the People had completed their case.

During the evening of November 22, 1943 a conference was held at which the following were present: the court, counsel for the People, counsel for the defense, Drs. Grover and Cheney (as psychiatrists for the People), and Drs. Laidlaw and Banay (as psychiatrists for the defense). Defense counsel wanted to have defendant plead guilty to murder in the second degree. The question at the conference was whether defendant, at the time of his commission of the act, knew its nature and quality and that it was wrong. Drs. Grover and Cheney were of the opinion that, since defendant described in detail all the facts leading up to and including the commission of the crime, defendant was not in an epileptic state at the time of the commission of the crime because, if he were, he would manifest a complete amnesia as to those facts. When Dr. Laidlaw (one of the defense psychiatrists) examined the transcript of the August 15, 1943 examination by Drs. Grover and Cheney and realized that defendant had then had a clear recollection of the details of the crime and was able to describe those details in sequence, Dr. Laidlaw changed his mind. At the time of the conference he was also of the opinion that the defense contention, namely: that at the time of the crime the defendant was in the throes of an epileptic quiver or seizure, was completely untenable; he agreed with the psychiatrists for the People that on August 13, 1943 the defendant knew the nature and quality of his act and knew it to be wrong. Only Dr. Banay was of the opinion that at the time of the crime the defendant was experiencing a psychomotor epileptic attack and, therefore, did not know the nature and quality of his act or that it was wrong.

On November 23, 1943 defendant's plea of guilty to murder in the second degree was accepted. On December 6, 1943 he was sentenced to a term of 30 years to life imprisonment.

In August 1946 defendant had his first recorded epileptic seizure. During the next 14 or 15 years he had a number of such attacks. Since about 1961 he has been under medication to prevent their recurrence.

Since 1954 defendant, on various grounds, has made a series of unsuccessful coram nobis applications to vacate the judgment of conviction (206 Misc. 950, 138 N.Y.S.2d 18, affd. 285 App.Div. 1087, 140 N.Y.S.2d 289; 8 Misc.2d 145, 167 N.Y.S.2d 443, affd. 5 A.D.2d 1016, 174 N.Y.S.2d 123; 24 Misc.2d 902, 205 N.Y.S.2d 523, affd. 13 A.D.2d 684, 215 N.Y.S.2d 731). The last-cited determination was reversed by the Court of Appeals (10 N.Y.2d 361, 223 N.Y.S.2d 457, 179 N.E.2d 475), with a direction that there be a hearing to determine whether, when defendant's plea of guilty of murder in the second degree was taken on November 23, 1943, he then had a 'plausible defense' and whether insufficient consideration had been given to such defense.

At the conclusion of the hearing thus directed, the court below found as a fact that defendan...