People v. Howard

• Decision Date: 03 July 1997
• Parties: PEOPLE of The State of New York, Respondent, v. John HOWARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 386

661 N.Y.S.2d 386

241 A.D.2d 920

PEOPLE of The State of New York, Respondent, v. John HOWARD, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 3, 1997.

Donald Thompson, Rochester, for Appellant.

Howard R. Relin by Elizabeth Clifford, Rochester, for Respondent.

Before DENMAN, P.J., and PINE, DOERR, BALIO and BOEHM, JJ.

MEMORANDUM:

Defendant was convicted following a jury trial of murder in the second degree (Penal Law § 125.25[3] ), burglary in the first degree (Penal Law § 140.30), petit larceny (Penal Law § 155.25), and criminal mischief in the fourth degree (Penal Law § 145.00). The conviction arose out of a house burglary in which the resident died of cardiac arrhythmia suffered during the burglary. Defendant contends that County Court's charge on accessorial liability precluded the jury from considering his affirmative defense to felony murder (Penal Law § 125.25[3] ) because the accessorial liability charge presented the felony murder count as a strict liability crime based on defendant's admitted participation in the burglary. That contention is without merit. Under the circumstances of this case, the court's charge was proper.

The People's proof establishes that the killing occurred in the course of the burglary (see, Penal Law § 125.25[3] ). In that circumstance, felony murder is a strict liability offense (see, People v. Williams [Larry D.], 239 A.D.2d 922, 659 N.Y.S.2d 597 ). Under the felony murder doctrine, an accomplice in the underlying act may be vicariously liable for the act of another participant under common-law principles of accessorial and conspiratorial liability (see, People v. Bornholdt, 33 N.Y.2d 75, 85, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109). The People are required to prove only that the defendant intentionally participated in the underlying felony, during the course of which one of the participants caused the death of a nonparticipant (see, People v. Santanella, 63 A.D.2d 744, 747, 405 N.Y.S.2d 284, cert. denied sub nom. Tamilio v. New York, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876). The court's charge properly conveyed those principles to the jury. The Court of Appeals has recognized that the affirmative defense "is inconsistent with the rationale of the doctrine [of felony murder] itself", but has upheld the constitutionality of requiring defendant to establish the affirmative defense by a preponderance of the evidence (see, People v. Bornholdt, supra, at 85, 350 N.Y.S.2d 369, 305 N.E.2d 461). Nor is there any merit to the contention that the charge was improper because it erroneously conveyed the notion of proximate cause (see, People v. Matos, 83 N.Y.2d 509, 611 N.Y.S.2d 785, 634 N.E.2d 157).

Defendant further contends that the court...