People v. Goetz

• Decision Date: 17 April 1986
• Citation: 501 N.Y.S.2d 326,116 A.D.2d 316
• Parties: The PEOPLE of the State of New York, Appellant, v. Bernhard GOETZ, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 326

501 N.Y.S.2d 326

116 A.D.2d 316

The PEOPLE of the State of New York, Appellant, v. Bernhard GOETZ, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 17, 1986.

R.M. Pitler, New York City, for appellant.

M.M. Baker, New York City, for defendant-respondent.

Before KUPFERMAN, J.P., and CARRO, ASCH, KASSAL and WALLACH, JJ.

KASSAL, Justice.

We agree with the thoughtful and incisive analysis of the issues by Trial Term and affirm to the extent appealed from, essentially for the reasons stated by Justice Crane. However, in view of the importance of the issue, we would add the following:

I

This appeal poses a critical legal issue in a most significant criminal case--the proper legal standard to be employed in determining the defense of self-defense or justification in connection with the use of deadly physical force to repel a robbery and/or in response to the claimed threatened use of deadly physical force. The Justice at Trial Term dismissed nine counts of the indictment because of fundamental error by the prosecutor in his instructions to the Grand Jury, which, the court found to be so serious and prejudicial as to significantly impinge upon the integrity of the Grand Jury proceeding. Trial Term, however, did grant leave to the District Attorney to represent the charges to another Grand Jury. As a result, this appeal, on legal issues only, is not concerned with the underlying merits of any of the criminal charges, neither those dismissed by Justice Crane, which may be presented to another Grand Jury since leave to resubmit was granted, nor those charges not dismissed, which await trial.

Piercing the maze of confusion, the rhetoric and media sensationalism and the heat that have all surrounded this case, it is crucial to focus upon the limited question before us on this appeal. The sole issue is the propriety of the instructions by the assistant district attorney to the Grand Jury on justification. The charge basically employed an objective test, significantly different from the instructions given by another assistant district attorney to the first Grand Jury in this matter.

The Grand Jury instructions presented here were in direct conflict with the subjective standard explicitly required by Penal Law § 35.15--"he reasonably believes"--and in contravention of a long line of appellate decisions on the issue. In this Department, 7 of the 14 present members of this Court have recently approved this subjective standard (see, People v. Montanez, App.Div., 499 N.Y.S.2d 689; People v. Santiago, 110 A.D.2d 569, 488 N.Y.S.2d 4). In the Second Department, 10 of the 15 members of that Bench came to the same conclusion (see, People v. Powell, 112 A.D.2d 450, 492 N.Y.S.2d 106; People v. Swinson, 111 A.D.2d 275, 277, 489 N.Y.S.2d 111 [Titone, J., concurring in part]; People v. Long, 104 A.D.2d 902, 480 N.Y.S.2d 514; People v. Wagman, 99 A.D.2d 519, 471 N.Y.S.2d 147; People v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619).

These decisions uniformly hold that the critical inquiry under New York's justification statute is governed by a subjective standard, namely, whether the defendant reasonably believed the use of physical force or deadly physical force to be necessary under the circumstances, not the objective test espoused by the District Attorney and the dissent--whether a reasonably prudent man would have had that belief in that situation. In our view, the use of the objective standard improperly shifts the focus of attention from the subjective state of mind of this defendant, necessary to determine his mental state in terms of culpability and, in evaluating his moral culpability, substitutes the criterion of a fictitious, hypothetical person--the reasonable man--thereby using civil negligence concepts, in sharp contrast to the Penal Law definition of this defense.

Contrary to statements made at oral argument and in the District Attorney's brief, our prior holdings were not made in a "jurisprudential vacuum", but were carefully researched, considered and determined. There is no basis for the highly unusual, unfounded and incorrect assertion that this Court rendered decisions without considering the prior law. Appellant and our dissenting colleagues overlook the fact that within the last few months, still fresh in mind, this precise issue had been raised and rejected in Santiago and in Montanez only after a thorough evaluation of the legal concepts, which had been fully presented in the briefs and at oral argument.

Justice Asch suggests that, when Santiago and Montanez were decided, we were not aware of and did not "discuss" the prior decisions of the Court of Appeals. To the contrary, Santiago expressly relied, in part, upon the Second Department memorandum decision in Wagman, which followed that court's earlier decision in Desmond. Desmond had been based upon, inter alia, several earlier authorities--People v. Lumsden, 201 N.Y. 264, 94 N.E. 859; People v. Governale, 193 N.Y. 581, 86 N.E. 554, and People v. Taylor, 177 N.Y. 237, 69 N.E. 534. As a matter of fact, this last case, Taylor, has not been addressed, either by the District Attorney or the dissent. Moreover, in People v. Gonzales, 80 A.D.2d 543, 436 N.Y.S.2d 293, the District Attorney had conceded that the trial court erred in instructing the jury on the defense of justification by utilizing "the ordinary prudent man" standard. In any event, the suggestion that our prior decision in Santiago is "fatally flawed", and that those of the Second Department are "highly suspect" because they did not include citations of a greater number of decisions on the issue is as novel as it is wrong.

We approach the disposition of this case with a keen awareness of society's overriding concern that justice be done, but only in adherence with due process of law. The fundamental fairness, on which our system of justice is based, is designed to protect the individual rights of those accused as well as the interests of society. This mandates that presentment to a Grand Jury be done by way of adequate and proper legal instructions, without which, the Grand Jury--historically, the heart of our criminal justice system--must falter. As Trial Term aptly observed:

This case for all concerned, including defendant, cries out for adjudication, not according to popular opinions, emotional reactions or political philosophy, but according to the evidence, properly and fairly admitted before the appropriate tribunal, and adjudicated in obeisance to the rules of law. Indeed, observance of rules of law is what makes our society stable; adoption and enforcement of these rules pursuant to our constitutions is what keeps us free.

II

In the early afternoon hours of December 22, 1984, newspapers throughout the nation carried sensational headlines that four youths had been shot by a man who appeared to have been victimized on a downtown IRT subway train and who, after the shooting, fled the scene onto the tracks and into a nearby subway tunnel. On December 31, 1984, nine days later, Bernhard Goetz voluntarily surrendered to the police in Concord, New Hampshire, identifying himself as the wanted subway gunman. After Miranda warnings had been given, in a lengthy, recorded interview, he explained his background in terms of his two earlier experiences as a robbery victim and described his perceptions at the time of this subway confrontation, which he claims motivated and prompted his extraordinary response. He waived extradition and was returned to New York for arraignment.

The first Grand Jury proceeding, at which neither the defendant nor any of the youths testified, returned an indictment charging defendant with criminal possession of a weapon in the third and fourth degrees but did not return a true bill on the other charges of attempted murder, assault and reckless endangerment. On March 12, 1985, the court granted the prosecutor's application, pursuant to CPL 190.75(3), for leave to resubmit the case to a second Grand Jury, at which two of the alleged "victims", testified. Following this, defendant was indicted for attempted murder, assault, reckless endangerment and criminal possession of a weapon in the second degree. At his arraignment on the second indictment, both indictments were consolidated.

This appeal is from an order granting defendant's omnibus motion to dismiss nine counts in the second indictment based upon claimed erroneous instructions given to the Grand Jury on the critical defense of justification. In charging the Grand Jury on self-defense under Penal Law § 35.15, the prosecutor, in essence, initially told the grand jurors that, under the statute, a person may use deadly physical force, (1) when he reasonably believes that the other person is using or about to use deadly physical force but that he is not justified in doing so "if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating" or, (2) when he reasonably believes that the other person is committing or attempting to commit a robbery, in which case there is no duty of retreat. At the end of the charge, one of the grand jurors, still obviously unclear as to the full import of the instruction, sagely inquired as to the meaning of the word "reasonably" in terms of assessing defendant's belief on the issue of justification:

You use the term reasonably with regard to the state of mind of the defendant. Are we to be concerned with psychiatric statement [sic] or whether we feel this was an insane act or irrational? You say if he believes in his mind that what he was doing--

At this point, the prosecutor interrupted him and offered the following supplemental instruction by way of clarification as to the key element of this defense:

Okay. I will reemphasize three elements of the defense of justification.

The first element is that he must in fact believe in his own mind that he was in a situation which he feared that deadly...