People v. Hernandez

• Decision Date: 16 November 1993
• Parties: , 624 N.E.2d 661 The PEOPLE of the State of New York, Respondent, v. David HERNANDEZ, Appellant. The PEOPLE of the State of New York, Respondent, v. Oswaldo SANTANA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 524

604 N.Y.S.2d 524

82 N.Y.2d 309, 624 N.E.2d 661

The PEOPLE of the State of New York, Respondent, v. David HERNANDEZ, Appellant.

The PEOPLE of the State of New York, Respondent, v. Oswaldo SANTANA, Appellant.

Court of Appeals of New York.

Nov. 16, 1993.

[82 N.Y.2d 310] [624 N.E.2d 662] Feldman and Feldman, Hauppauge (Steven A. Feldman and Arza R. Feldman, of counsel), for David Hernandez, appellant.

[82 N.Y.2d 311] Barry Stendig, New York City, and Philip L. Weinstein, for Oswaldo Santana, appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Paula Milazzo, Amyjane Rettew and Phyllis A. Monroe, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

This appeal raises the question whether a conviction of felony murder under Penal Law § 125.25(3) should be sustained where the homicide victim, a police officer, was shot not by one of the defendants but by a fellow officer during a gun battle following defendants' attempted robbery. Under the circumstances presented, we conclude that it should, and we therefore affirm.

I

Defendants Santana and Hernandez conspired to ambush and rob a man who was coming to a New York City apartment building to buy drugs. The plan was to have Santana lure him into the building stairwell where Hernandez waited with a gun. In fact, the man was an undercover State Trooper, wearing a transmitter, and backed up by fellow officers.

Once the Trooper was inside the building, Hernandez accosted him and pointed a gun at his head. A fight ensued during which the officer announced that he was a policeman, pulled out his service revolver and began firing. In the confusion, Hernandez, still armed, ran from the building into a courtyard where he encountered members of the police back-up unit. They ordered him to halt. Instead, he aimed his gun at one of the officers and moved toward him. The officers began firing, and one, Trooper Joseph Aversa, was fatally shot in the head. His body was found near the area where Hernandez was apprehended after being wounded. Santana was arrested inside the building.

The evidence at trial did not establish who killed Aversa, but the People concede that it effectively eliminated the possibility that either defendant was the shooter. Separate juries were empaneled for the two cases, and both defendants were convicted of felony murder and other charges.

On appeal, defendants contend that the felony murder charges should have been dismissed because neither one of them fired the fatal shot. The Appellate Division rejected that argument. Even though a fellow officer shot Aversa, the Court concluded that defendants were properly held responsible for felony murder because their conduct "unquestionably 'forged' a critical link in the chain of events that led to Trooper Aversa's death" (186 A.D.2d 471, 473, 588 N.Y.S.2d 567).

II

Some 30 years ago, this Court affirmed the dismissal of a felony murder charge on the grounds that neither the defendant nor a cofelon had fired the weapon that caused the deaths (People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736). In Wood, the defendant and his companions were escaping from a fight outside a tavern when the tavern owner, attempting to aid police, fatally shot a bystander and one of defendant's companions. Defendant was charged with assault and felony murder. At the time, the relevant provision of section 1044 of the former Penal Law defined murder in the first degree as "[t]he killing of a human being * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony" ( § 1044[2]. We concluded that by the plain terms of the statute defendant could not be liable for murder, for the killing of the two men was not committed by a person "engaged in the commission of" a felony or a felony attempt. Relying on the statute's "peculiar wording", we decided the case without addressing whether a similar result would be required as a matter of common law (8 N.Y.2d, at 53, 201 N.Y.S.2d 328, 167 N.E.2d 736; see, Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472). The Wood case acknowledged that other jurisdictions differed on whether to apply a proximate cause theory under which felons could be held responsible for homicides committed by nonparticipants or an agency theory under which felons would be responsible only if they committed the final, fatal act (People v. Wood, supra, 8 N.Y.2d at 51-53, 201 N.Y.S.2d 328, 167 N.E.2d 736; see, Annotation,Criminal Liability Where Act of Killing is Done by One Resisting Felony or Other Unlawful Act Committed by Defendant, 56 ALR3d 239, 249-261, §§ 4, 5).

In 1965, the Legislature revised the felony murder statute by removing the language that had been dispositive in Wood and replacing it with a provision holding a person culpable for felony murder when, during the commission of an enumerated felony or attempt, either the defendant or an accomplice "causes the death of a person other than one of the participants" (Penal Law § 125.25[3]. Thus, this appeal raises the question of whether Wood remains good law despite the recasting of the Penal Law. The question is one of first impression for this Court, although some Appellate Division panels have continued to adhere to the Wood rule that the shooter must be a participant in the underlying felony (see, e.g., People v. Castro, 141 A.D.2d 658, 529 N.Y.S.2d 554, lv. denied 72 N.Y.2d 1044, 534 N.Y.S.2d 943, 531 N.E.2d 663; People v. Ramos, 116 A.D.2d 462, 496 N.Y.S.2d 443).

The People believe those Appellate Division decisions to be in error. They premise their argument on the established construction of the term "causes the death", which is now the operative language in the Penal Law. That term is used consistently throughout article 125 and has been construed to mean that homicide is properly charged when the defendant's culpable act is "a sufficiently direct cause" of the death so that the fatal result was reasonably foreseeable (People v. Kibbe, 35 N.Y.2d 407, 412, 362 N.Y.S.2d 848, 321 N.E.2d 773; accord, Matter of Anthony M., 63 N.Y.2d 270, 280, 481 N.Y.S.2d 675, 471 N.E.2d 447; People v. Stewart, 40 N.Y.2d 692, 697, 389 N.Y.S.2d 804, 358 N.E.2d 487). In the People's view the evidence here meets that standard. They contend that it was highly foreseeable that someone would be killed in a shootout when Hernandez refused to put down his gun and instead persisted in threatening the life of one of the back-up officers. Thus, under the People's theory, Hernandez "caused the death" of Aversa. Because his attempt to avoid arrest was in furtherance of a common criminal objective shared with Santana, the People contend that the murder was properly attributed to Santana as well as under principles of accomplice liability (see, People v. Friedman, 205 N.Y. 161, 98 N.E. 471; accord, People v. Wood, supra, 8 N.Y.2d at 52, 201 N.Y.S.2d 328, 167 N.E.2d 736).

In response, defendants assert that People v. Wood, though decided on narrow statutory grounds, states a rule that was followed for centuries at common law and one that has been embraced by a significant number of jurisdictions. ^* The rationale for requiring that one of the cofelons be the shooter (or, more broadly, the person who commits the final, fatal act) has been framed in several ways. Some courts have held that when the victim or a police officer or a bystander shoots and kills, it cannot be said that the killing was in furtherance of a common criminal objective (State v. Severs, 759 S.W.2d 935, 938 [Tenn.Crim.App.]. Others have concluded that under such circumstances the necessary malice or intent is missing (Wooden v. Commonwealth, 222 Va. 758, 284 S.E.2d 811). Under the traditional felony murder doctrine, the malice necessary to make the killing murder was constructively imputed from the mens rea incidental to perpetration of the underlying felony (Commonwealth v. Redline, 391 Pa. 486, 493-494, 137 A.2d 472, 475, supra; IV Blackstone, Commentaries, at 200-201). Thus, in Wooden, the Virginia Supreme Court concluded that where a nonparticipant in the felony is the shooter, there can be no imputation of the necessary malice to him, and no party in the causal chain has both the requisite mens rea and culpability for the actus reus. Still other courts have expressed policy concerns about extending felony murder liability. They have asserted that no deterrence value attaches when the felon is not the person immediately responsible for the death, or have contended that an expansive felony murder rule might unreasonably hold the felons responsible for the acts of others--for instance, when an unarmed felon is fleeing the scene and a bystander is hit by the bad aim of the armed victim (see, People v. Washington, 62 Cal.2d 777, 781-782, 44 Cal.Rptr. 442, 446, 402 P.2d 130, 134; State v. Bonner, 330 N.C. 536, 541-542, 411 S.E.2d 598, 601).

III

Analysis begins with the statute. The causal language used in our felony murder provision and elsewhere in the homicide statutes has consistently been construed by this Court according to the rule in People v. Kibbe (35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773, supra ), where we held that the accused need not commit the final, fatal act to be culpable for causing death. To accept defendants' analysis would require that we hold that the phrase "causes the death" in subdivision (3), the felony murder paragraph of section 125.25, means something entirely different than it does in subdivisions (1) and (2) of the very same section. That is contrary to the normal rules of statutory construction ( see, People v. Bolden, 81 N.Y.2d 146, 151, 597 N.Y.S.2d 270, 613 N.E.2d 145).

That rule of construction must bend, of course, if in fact the Legislature intended the language to have a unique meaning within the context of the felony murder provision, but the legislative history of the 1965 revision reveals nothing about whether the Legislature intended to...