People v. Goetz

• Decision Date: 16 January 1986
• Citation: 131 Misc.2d 1,502 N.Y.S.2d 577
• Parties: The PEOPLE of the State of New York v. Bernhard GOETZ, Defendant.
• Court: New York Supreme Court

Page 577

502 N.Y.S.2d 577

131 Misc.2d 1

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

Supreme Court, Trial Term New York County, Part 81.

Jan. 16, 1986.

Robert M. Morgenthau, Dist. Atty., New York County(Robert M. Pitler and Gregory L. Waples of counsel), for the People.

Slotnick and Cutler, P.C., New York City(Barry Ivan Slotnick and Mark M. Baker of counsel), for defendant.

STEPHEN G. CRANE, Justice.

By this decision the court is dismissing and permitting re-presentation to a third grand jury of certain serious charges pending against defendant, Bernhard Goetz, because of a prejudicial error in instructing the second grand jury on the defense of justification and due to developments concerning one or more of the "victims" necessitating a superseding indictment.

The case presents a challenging question.Is there an irreconcilable conflict between the right of an individual to resort to self-protection and the need of society to enforce its laws?Any right-thinking person would condemn an indiscriminate shooting in a public place.Yet, an individual is justified in using deadly physical force when he reasonably believes that he is being robbed.Strong emotional reactions stem from the prosecution of a person who shoots another individual about to rob him.In an ordered society, however, justification must be tested in accordance with the processes of the law so that justice may be done for all concerned and, equally, so that all concerned may perceive justice being done.To respond to public opinion of the moment or to capitulate to popular emotions, then, defeats the ends of justice and commits the rule of law to the whims of majority (or vocal minority) dictates.

I.PROCEDURAL HISTORY

In this context comes one of the most difficult criminal cases of our generation.In the early afternoon of December 22, 1984, a man on an IRT subway galvanized the world by shooting four youths who, he said, were attempting to rob him.Nine days later Bernhard Goetz entered a police station in Concord, New Hampshire, claiming to be the subway gunman.He was interviewed at length on videotape and audiotape and then was returned to New York City.

The District Attorney presented charges of attempted murder, second degree, and assault, first degree, as to each of the four youths, and reckless endangerment, first degree, criminal possession of a weapon, second degree, criminal possession of a weapon, third degree (the gun in the subway) and two counts of criminal possession of a weapon, fourth degree (involving two guns he left with a neighbor on December 30, 1984).The defendant did not testify before the grand jury hearing these charges although his lengthy recorded statements were placed in evidence and played back for this presentation.Of the four youths who were shot, three were brought before the grand jury, but upon their refusal to waive immunity they were excused.On January 25, 1985, the grand jury saw fit to dismiss all but the third and fourth degree weapons possession charges.

Later, an application pursuant to CPL 190.75(3) was granted for resubmission of the charges the first grand jury had dismissed.An Article 78 proceeding to overturn this order was dismissed.Matter of Goetz v. Crane, 111 A.D.2d 729, 491 N.Y.S.2d 5, leave app. denied65 N.Y.2d 609, 484 N.E.2d 671.The new grand jury indicted Mr. Goetz on the charges that the first grand jury had dismissed.After his arraignment on March 28, 1985, this indictment was consolidated with the indictment on the third and fourth degree weapons charges that the original grand jury had voted.

II.MOTION TO DISMISS SECOND INDICTMENT

A.Justification

In charging the second grand jury on the law, the assistant district attorney gave two sets of instructions on justification or self-defense that he said applied to all the charges.¹One set pertained to the use of deadly physical force in response to what defendant reasonably believed to be the threat of deadly physical force against him.In these circumstances, the defendant is not justified if he knows he can safely retreat.(Penal Law § 35.15[2][a].)After tracking the statute, the assistant repeated the elements.In doing so, he omitted the requirement that the defendant reasonably believe that unlawful physical force was about to be used against him.But defendant does not complain of this omission because it benefitted him.Continuing, the prosecutor charged that the defendant's reactive use of deadly physical force, considered separately for each shot fired, did have to be reasonable.This was basically faithful to the statutory language.Then, the prosecutor reiterated the duty to retreat without reference to the defendant's knowledge that he can retreat in safety.This was error ² of which defendant makes no specific complaint.Summarizing, the assistant repeated the instructions using a test of "whether the evidence creates reasonable cause to believe that any shot he fired was not a reasonably necessary response" to what he had perceived.

The second set of instructions concerned the use of deadly physical force where the actor reasonably believes he is about to be robbed.In this defense retreat plays no role.Penal Law § 35.15(2)(b);People v. Ligouri, 284 N.Y. 309, 31 N.E.2d 37.In staking out these instructions, the assistant district attorney correctly explained that defendant must have reasonably believed that a robbery was about to occur.This reasonable belief, he said, had to be analyzed as to each of the four youths and as to each shot he fired.

When he had concluded his charge, one of the grand jurors asked the perceptive question at the very core of this entire case:

"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 assistant rendered supplemental instructions:

"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 physical force was about to be applied against him.³

The second element is that his response, assuming that he did actually believe 3 his response, was his response reasonable under the circumstances and in determining whether it was reasonable under the circumstances you should consider whether the defendant's conduct was that of a reasonable man in the defendant's situation.

So there's both a subjective and objective element to this.First of all, you have to determine whether the defendant, in his own mind, believed 3 he was in the kind of peril that permitted him to use deadly physical force.You must also then determine whether his response was reasonable under the circumstances, whether that was the action--the response was the action that he--that a reasonable man who found himself in the defendant's situation and if it was unreasonably excessive or--or otherwise unjustifiable it--then the defense would not be made out and the third element is retreat."[Emphasis added.]

These were the final instructions of substance the jurors heard on this or any other legal matter.

Before turning to the contentions of the litigants, it should be noted that the quoted, final instructions on justification seemed to be limited to defendant's response to deadly physical force, an academic instruction on the facts presented to the second grand jury.(See footnote 2, supra.)The prosecutor does not seize upon this circumstance to urge this court to avoid deciding the merits of any claimed error in this justification charge.He might have argued that any error was harmless since defendant was not entitled to the charge in the first place.Nevertheless, we cannot discern which of the sets of instruction on justification the grand juror was concerned with because the assistant cut off his or her question.Moreover, because the same phrase--"he reasonably believes"--is involved in both sets (Penal Law § 35.15[2][a] and [2][b] ), the parting instruction of the assistant must, of necessity, have had an effect in the grand jurors' understanding of each charge on justification.Cf.People v. Rodriguez, 81 A.D.2d 513, 514, 437 N.Y.S.2d 346.

The defendant argues that the underlined portions of the supplemental instructions portrayed an objective standard.This offends the rule requiring a purely subjective charge.The People argue that a subjective test pertains only to the perceptions of a defendant but an objective test measures his reactions.Thus, they urge the court to adopt a hybrid rule.Upon oral argument, they expanded their hybrid concept by arguing for a subjective-objective test for the phrase "he reasonably believes" in assessing both the defendant's perception and his reaction.

The first approach by the People is without merit.There is no distinction between a defendant's perception of being threatened and his reaction to the threat.Each requires that he reasonably believe: He must reasonably believe that another person is about to commit a robbery, and he must reasonably believe that the deadly physical force he used was the extent of force necessary to defend himself.The objective test to determine the justification of a defendant's reaction has been rejected in People v. Powell, 112 A.D.2d 450, 492 N.Y.S.2d 106;People v. Santiago, 110 A.D.2d 569, 488 N.Y.S.2d 4;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 147andPeople v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619, among recent cases.

The more difficult question is whether a hybrid test is applicable to determine what an actor "reasonably believes" in both his perception and his reaction.It is unnecessary to trace the history of the justification defense.As early as 2 N.Y. 193 in Shorter...