People v. Douglas

• Decision Date: 29 November 1973
• Citation: 349 N.Y.S.2d 460,43 A.D.2d 661
• Parties: PEOPLE of the State of New York, Respondent, v. Simon DOUGLAS, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 460

349 N.Y.S.2d 460

43 A.D.2d 661

PEOPLE of the State of New York, Respondent, v. Simon DOUGLAS, Jr., Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 29, 1973.

Nicholas P. Varlan, Rochester, for appellant; Robert S. Beer, Rochester, of counsel.

Jack B. Lazarus, Dist. Atty., Rochester, for respondent; Melvin Bressler, Rochester, of counsel.

Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, MOULE and SIMONS, JJ.

MEMORANDUM.

Judgment affirmed. All concur except MOULE, J., who dissents and votes to reverse the judgment and grant a new trial in the following Opinion:

MOULE, Justice (dissenting):

The questions presented are whether the trial court erred in charging the jury that a statement of defendant might constitute a confession or admission and whether the verdict of guilty of murder was against the weight of the evidence. Defendant killed a man with a knife in an altercation which occurred in an automobile repair shop. Deceased had at one time been an occupant of an apartment rented by defendant, but defendant had made deceased move from it because he had been leaving the outside doors open.

Deceased had been drinking heavily and defendant was sober. The People's proof is in conflict on whether the altercation started because he verbally abused defendant or because defendant asked deceased why he was telling lies about him. In any event, they tried to use a chair against one another, defendant gained possession of the chair and threw it at deceased, both of them fell and defendant lost his glasses. When they regained their feet, deceased put his hand to his right hip pocket and defendant plunged a knife into deceased's chest. This blow proved fatal.

Defendant testified that he knew that deceased carried a knife and had seen him draw it against another person. A police officer testified that the police advised defendant of his rights, that defendant waived them, and was then questioned. The officer testified that defendant said that he and deceased had become involved in an argument during the course of which deceased threw a chair at him. He said that defendant told him that deceased had reached into a back pocket and, upon observing this, that he (defendant) picked up a knife which was lying on the floor and stabbed deceased once in the chest. The police officer said that he did not believe defendant's statement.

The trial judge charged the jury that it could find the defendant guilty of murder (Penal Law, § 125.25), manslaughter, first degree (Penal Law, § 125.20), or manslaughter, second degree (Penal Law, § 125.15). The court properly instructed the jury that, to find defendant guilty of murder, it had to find 'intent to cause the death of another person'; to find defendant guilty of manslaughter in the first degree, it had to find 'intent to cause serious physical injury to another person'; and to find defendant guilty of manslaughter in the second degree, it had to find that he 'recklessly cause(d) the death of another person.' It further charged the definition of 'recklessly' as set forth in § 15.05 of the Penal Law.

The court also instructed the jury concerning testimony regarding an alleged confession or admission. It stated that defendant could not be convicted upon a confession or admission without additional proof that the offense charged had been committed, and added that, 'It is not necessary that the additional evidence should be sufficient to convict the defendant independent of the confession.' This is a proper statement of the law (People v. Reade, 13 N.Y.2d 42, 241 N.Y.S.2d 829, 191 N.E.2d 891; People v. Taleisnik, 225 N.Y. 489, 122 N.E. 615; People v. Pendleton, 42 A.D.2d 144, 345 N.Y.S.2d 773). However, the problem is that, although the defendant's statement may have...