People v. Hale

• Decision Date: 06 June 1997
• Citation: 173 Misc.2d 140,661 N.Y.S.2d 457
• Parties: , 1997 N.Y. Slip Op. 97,381 The PEOPLE of the State of New York, Plaintiff, v. Michael Shane HALE, Defendant.
• Court: New York Supreme Court

Page 457

661 N.Y.S.2d 457

173 Misc.2d 140, 1997 N.Y. Slip Op. 97,381

The PEOPLE of the State of New York, Plaintiff, v. Michael Shane HALE, Defendant.

Supreme Court, Kings County.

June 6, 1997.

Kevin M. Doyle, Capital Defender, New York City (Kelley J. Sharkey, John M. Youngblood and Sonya A. Zoghlin, of counsel), for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Keith Dolan, Deborah Stevens Modica and Kyle C. Reeves, of counsel), for plaintiff.

ALBERT TOMEI, Justice.

In an omnibus motion filed on January 21, 1997, the defendant requests numerous orders and hearings. The People filed papers in opposition, and the defendant filed a reply. Oral argument was heard on the motions. The defendant's motions are resolved as follows:

I. MOTION TO DISMISS THE INDICTMENT

Motion to Dismiss pursuant to C.P.L. § 210.25(1)

The defendant moves to dismiss the indictment pursuant to C.P.L. § 210.25(1) on the grounds that (1) counts one, two, three, five, and six are multiplicitous; and (2) count one improperly "double-counts" the victim's death.

Counts one and two--Multiplicity

The defendant contends that the first two counts of the indictment, each of which charges murder in the first degree, must be considered multiplicitous because they are predicated upon the same aggravating factor--robbery--albeit in different degrees. Furthermore, the defendant claims that count one, charging robbery in the first degree as the aggravating factor, improperly "double-counts" the victim's death as an "intentional killing" and as "serious physical injury."

The People assert that these counts do not render the indictment multiplicitous because each requires proof of an additional fact that the other does not, and because they may be considered to be "akin" to lesser included offenses.

An indictment is multiplicitous when two or more separate counts charge the same crime. See People v. Kindlon, 217 A.D.2d 793, 795, 629 N.Y.S.2d 827 (3d Dep't 1995) citing People v. Senisi, 196 A.D.2d 376, 382, 610 N.Y.S.2d 542 (2d Dep't 1994). An indictment is not considered multiplicitous if each count requires proof of an additional fact that the other does not. Kindlon, 217 A.D.2d at 795, 629 N.Y.S.2d 827 citing Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306.

In our death penalty statute, the aggravating factors that elevate a murder to the status of a crime worthy of the death penalty are prescribed in the definition of the offense itself. Thus, Penal Law § 125.27(1)(a)(vii) provides that a person is guilty of murder in the first degree when, with the intent to cause the death of a person, he causes the death of that person or a third person, and "the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of" certain enumerated felony offenses, including robbery. See P.L. § 125.27(1)(a)(vii). ¹ The legislature chose to include only certain degrees of the enumerated felonies, except for robbery which is listed without reference to the degree of the offense. ²

Count one of the indictment in the instant case charges the defendant with murder in the first degree, with robbery in the first degree as the aggravating factor. Count two charges the defendant with murder in the first degree, with robbery in the third degree as the aggravating factor. See P.L. § 125.27(1)(a)(vii). Both counts are predicated upon the same alleged conduct. The only difference between the two counts as charged is in the degree of the robbery. Should the People prove count one, they will have also necessarily proven count two, since it would have been impossible for the defendant to have committed an intentional killing in the course of a first degree robbery without concomitantly committing an intentional killing in the course of a third degree robbery.

Thus, it appears that counts one and two charge the same crime--murder in the first degree predicated upon the felony of robbery--and are, therefore, multiplicitous. ³ Indeed, by specifying robbery, without reference to degree, as a felony that may form the basis for an aggravating factor, the legislature apparently did not intend to permit multiple charges of murder in the first degree predicated upon different degrees of robbery arising out of the same occurrence. That the legislature chose to describe by degrees all of the other felonies enumerated in P.L. 125.27(1)(a)(vii) adds force to this argument.

The crime of murder in the first degree with robbery as the felony aggravating factor requires proof of the intentional killing of the victim in the course of or in furtherance of the defendant's commission of the crime of robbery. As to the underlying felony, it does not require proof of any facts additional to those required for simple robbery, i.e., forcible stealing. See P.L. § 160.00. Thus, any reference in the indictment to the degree of the robbery must be considered mere surplusage. See People v. Killane, 203 A.D.2d 386, 387, 610 N.Y.S.2d 547 (2d Dep't 1994) (specification in indictment that defendant engaged in an "illegal speed contest," as defined in Vehicle and Traffic Law § 1182, was a non-essential factual recital that the People were not required to prove to establish offense of criminally negligent homicide); see also Preiser, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, Criminal Procedure Law § 200.50 (where indictment alleges more than is necessary to support offense charged, prosecution need prove only facts necessary for conviction, and balance of factual allegations may be disregarded as surplusage).

Multiplicity may be remedied either by an election of counts by the prosecution, or by the court's decision to charge only one of the multiplicitous counts to the jury, (see People v. Horne, 121 Misc.2d 389, 394, 468 N.Y.S.2d 433 [Kings Co.1983] citing U.S. v. Brandom, 320 F.Supp. 520, 525 [W.D.Mo.1970 ]). In this capital case, it is the court's opinion that the preferred practice is to cure the defect before trial, and in so doing, eliminate any prejudice in the penalty phase--assuming there is to be one--that might accrue from the jury's consideration of redundant aggravating factors during the guilt phase of the proceedings.

Therefore, the court orders the dismissal of count one, charging murder in the first degree, with robbery in the first degree as the aggravating factor. ⁴ Count two will remain in effect. Counts two, three, five and six--Multiplicity and double-counting

Counts two and three charge murder in the first degree, with robbery and kidnapping in the first degree as the respective aggravating factors. Counts five and six charge murder in the second degree (felony murder), with the same respective crimes serving as the underlying felonies. The defendant asserts that these charges render the indictment multiplicitous because "multiple felonies underlying the same murder were not meant to authorize multiple charges under P.L. § 125.27(a)(vii)," or multiple charges of felony murder under P.L. § 125.25(3). ⁵

In support of this argument, insofar as it applies to the first-degree murder counts, the defendant cites C.P.L. § 400.27(3), which provides, in pertinent part, that "each subparagraph of paragraph (a) of subdivision one of section 125.27 of the penal law shall be deemed to define an aggravating factor." See C.P.L. § 400.27(3). According to the defendant, because the enumerated felonies are contained within subparagraph (vii), rather than listed in separate subparagraphs, the legislature did not intend for each of them to constitute a separate aggravating factor. Therefore, he reasons, all but one of the capital murder counts must be dismissed. As additional support for this argument, the defendant points out that a number of states make "murder during a felony" a single aggravating factor in their death penalty statutes.

The People counter that the defendant's construction of the statute artificially restricts the statement of the charges so that they are not reflective of his criminal conduct. Moreover, according to the People, that other states treat felony aggravators differently does not lead to the conclusion that the New York legislature so intended to limit the aggravators in the New York statute.

The court rejects the defendant's claim that the contested counts are multiplicitous. The counts at issue have different elements that require proof of additional facts that the others do not. The second count, charging murder in the first degree, requires proof that the alleged intentional killing took place in furtherance of a robbery, while the third count, also charging murder in the first degree, requires proof that the alleged intentional killing took place in furtherance of the crime of kidnapping in the first degree. Similarly, the felony murder counts--five and six--require proof pertaining to different underlying felonies: robbery and kidnapping, respectively. For the purpose of determining multiplicity, it does not matter that the charges arose out of the same conduct, so long as each charge requires proof of an additional fact that the other does not. See e.g. People v. Velez, 206 A.D.2d 258, 614 N.Y.S.2d 504 (1st Dep't 1994); People v. Johnson, 89 A.D.2d 814, 453 N.Y.S.2d 539 (4th Dep't 1982) (while not addressing multiplicity directly, both decisions let stand multiple convictions for felony murder premised upon different underlying felonies arising out of the same criminal transaction, but held that sentences must run concurrently).

Furthermore, the court is unpersuaded by the defendant's argument that, by listing a series of felonies together within one of the twelve subparagraphs of aggravating factors, rather than listing each of the felonies in a separate subparagraph, the legislature intended to permit the charging of only one count of murder in the first degree premised upon the commission of an intentional killing in the course...