People v. Felder

• Decision Date: 13 July 1972
• Citation: 39 A.D.2d 373,334 N.Y.S.2d 992
• Parties: The PEOPLE, etc., Respondent, v. Julian FELDER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 992

334 N.Y.S.2d 992

39 A.D.2d 373

The PEOPLE, etc., Respondent, v. Julian FELDER, Appellant.

Supreme Court, Appellate Division, Second Department.

July 13, 1972.

James J. McDonough, Mineola (Matthew Muraskin, Mineola, and Victor Ort, Oyster Bay, of counsel), for appellant.

William Cahn, Dist. Atty. (John P. Della Ratta, Greenvale, of counsel), for respondent.

Before RABIN, P.J., and LATHAM, SHAPIRO, CHRIST and BENJAMIN, JJ.

SHAPIRO, J.

The defendant has been found guilty of the crimes of robbery in the first degree and grand larceny in the third degree. ¹ Subdivision 4 of section 160.15 of the Penal Law provides that a person is guilty of Robbery in the first degree when he forcibly steals property and, in the course of the commission of the crime, or immediate flight therefrom, 'displays what appears to be a pistol, revolver or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.' If, however, the defendant merely 'displays what appears to be a pistol, revolver or other firearm', the crime is Robbery in the second degree (Penal Law, § 160.10, subd. 2, par. (b)).

Subdivision 2 of section 25.00 of the Penal Law provides:

'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.'

The 1967 Penal Law established a number of affirmative defenses such as entrapment (§ 35.40), duress (§ 35.35, subd. 1) and renunciation (§ 35.45, subd. 1). While the Court of Appeals has upheld the validity of casting the burden of proof as to the defense of entrapment upon the defendant (People v. Laietta, 30 N.Y.2d 68, 330 N.Y.S.2d 351, 281 N.E.2d 157; People v. Calvano, 30 N.Y.2d 199, 331 N.Y.S.2d 430, 282 N.E.2d 322), the case before us presents a novel problem. In most instances, affirmative defenses are in the nature of confession and avoidance, which entirely relieve the defendant of a criminal culpability (cf. People v. Laietta, Supar, 30 N.Y.2d p. 75, 330 N.Y.S.2d p. 356, 281 N.E.2d p. 161; 19 Syracuse L.Rev. 44, 64). Here, however, by taking the stand to establish the affirmative defense (i.e., the nonoperability of the firearm allegedly used in the robbery) the defendant would necessarily have had to incriminate himself in the commission of the crime of robbery in the second degree. ² He contends that subdivision 4 of section 160.15 of the Penal Law is unconstitutional because it creates a presumption of guilt and thus would compel him to be a witness against himself.

At first blush the defendant's contention seems to have merit, since in a case, such as this, in which the gun was not prodeced at the trial, the only practical way in which he could have established his affirmative defense was to testify and convict himself of robbery in the second degree. ³

However, the argument does not withstand close analysis, since the Legislature, had it desired to do so, could, in the first instance, have made the display of what Appeared to be a firearm during the course of a forcible stealing of property robbery in the first degree. The condition of the firearm is information uniquely within the knowledge of the defendant and 'will rarely, if ever, be established by the prosecution when the actor does not fire the weapon or the weapon is not immediately recovered' (Denzer and McQuillan, Supplementary Practice Commentary on section 160.15 of the Penal Law (McKinney's Cons.Laws of N.Y., Book 39, Pocket Part)). Understandably, therefore, the State has cast the burden of establishing the nonoperability of the weapon upon the defendant.

In so doing, the Legislature has, in effect, created a presumption that the firearm displayed during the course of a forcible theft of property was loaded, operable and capable of causing serious physical injury. This was recognized by the Governor in his memorandum approving the addition of subdivision 4 to section 160.15 when he said (N.Y.Legis.Annual, 1969, p. 567; 2 McKinney's 1969 Session Laws of N.Y., p. 2566):

'The bill amends the Penal Law to increase the penalties for robbery and burglary where firearms are displayed by the defendant * * *.

Specifically, the bill provides that a firearm displayed during the commission of a burglary or a robbery Is presumed to be loaded and would constitute the crime of Burglary in the First Degree, or Robbery in the First Degree, both of which are class B felonies punishable by up to 25 years imprisonment. Defendants charged with such acts would be permitted to prove, as an affirmative defense, that the firearm exhibited was either unloaded or incapable of being fired. If such defense were successful, the crime charged would be reduced to Burglary in the Second Degree or Robbery in the Second Degree, class C felonies punishable by up to 15 years in prison' (emphasis added).

Placing the burden of proof on a defendant as to a fact peculiarly within his knowledge does not deny him the benefit of the presumption of innocence. As Mr. Justice Cardozo noted in Morrison v. California (291 U.S. 82, 88--89, 54 S.Ct. 281, 284, 78 L.Ed. 664):

'The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.'

(See, also, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302.)

The defendant's reliance upon Stump v. Bennett, 8 Cir., 398 F.2d 111, cert. den. Sub nom. Bennett v. Stump, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 is misplaced. The court there invalidated as violative of due process an Iowa statute which, Inter alia, placed upon the defendant the burden of establishing the defense of alibi by a preponderance of the evidence. That statute, unlike the one here under consideration, created an arbitrary presumption of the defendant's guilt of the substantive charge. The court noted (p. 116):

'By shifting the burden of proof to a person who claims to have been elsewhere at the time of the crime, there is created an irrational and arbitrary presumption of guilt. It arises not by reason of a proof of fact from which a fair inference might be drawn but from the mere happening that the defendant offers testimony in an attempt to establish innocence. When this occurs, unless the defendant can succeed in overbalancing the state's evidence, the jury is expressly told he cannot be acquitted by reason of his sole claim to innocence.'

Here, unlike the situation in Stump, the presumption arises from 'proof of fact from which a fair inference might be drawn' that the firearm displayed by the defendant was operable and not from 'an irrational and arbitrary presumption of guilt.' In this case the complainant testified that the defendant had pointed a gun at him and had threatened to kill him unless he did as he was told.

Section 1898--a of the former Penal Law (now Penal Law, § 265.15, subd. 3) provided that the presence of certain weapons in an automobile was presumptive evidence of illegal possession of the weapons by all of the occupants of the automobile. In discussing the constitutionality of that statute the court in People v. Russo (278 App.Div. 98, 101--102, 103 N.Y.S.2d 603, 606) said:

'Appellant's assertion that Section 1898--a of the Penal Law is unconstitutional is apparently based upon the claim that it is in conflict with the Fourteenth Amendment of the Federal Constitution and Article I, Section 6, of the Constitution of the State of New York, which provide in part that no person shall be compelled in any criminal case to be a witness against himself, nor deprived of life, liberty or property without due process of law.

'It is well settled that statutes such as Section 1898--a of the Penal Law, providing that certain facts are presumptive evidence of one or more of the ultimate facts in issue, are not unconstitutional where, as here, there is a rational connection with the facts proved and the conclusion presumed, and where the presumptions themselves are neither conclusive nor arbitrary. Morrison v. People of State of California, 1934, 291 U.S. 82, 90, 54 S.Ct. 281, 78 L.Ed. 664; Manley v. State of Georgia, 1929, 279 U.S. 1, 5--6, 49 S.Ct. 215, 73 L.Ed. 575; Mobile, J. & K.C.R.R. Co. v. Turnipseed, 1910, 219 U.S. 35, 42--43, 31 S.Ct. 136, 55 L.Ed. 78; People v. Adams, 1903, 176 N.Y. 351, 68 N.E. 636, 63 L.R.A. 406, affirmed Sub nom. Adams v. People of State of New York, 1904, 192 U.S. 585, 598, 24 S.Ct. 372, 48 L.Ed. 575; People ex rel. Woronoff v. Mallon, 222 N.Y. 456, 464, 119 N.E. 102, 104, 4 A.L.R. 463.'

The question of whether Permitting the exercise by a defendant of his right to establish as an affirmative defense that the gun displayed by him in the commission of a robbery was not loaded or capable of causing death or serious physical injury would violate his constitutional privilege against self-incrimination has never heretofore been determined in this State.

As noted, the Legislature could have made the use of what appeared to be a firearm during the course of the forcible stealing of property the crime of robbery in the first degree. Instead, as pointed out by Denzer and McQuillan ...