People v. Johnson
| Decision Date | 09 July 1982 |
| Court | New York Supreme Court — Appellate Division |
| Parties | PEOPLE of the State of New York, Respondent, v. Gerald JOHNSON, Appellant. |
Before SIMONS, J. P., and CALLAHAN, DOERR, MOULE and SCHNEPP, JJ.
Defendant and his brother were charged in a six count indictment with three counts of second degree murder, including one intentional murder count (Penal Law § 125.25, subd. 1) and two felony murder counts (Penal Law § 125.25, subd. 3) with the underlying felonies being robbery and burglary respectively, and single counts of robbery in the first degree (Penal Law § 160.15), burglary in the first degree (Penal Law § 140.30), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). The charges arose from the execution-style slaying of a 61-year-old woman during the course of burglarizing her home. A jury rendered a verdict finding defendant guilty of two counts of murder in the second degree (felony murder) under Penal Law § 125.25 (subd. 3). Defendant was sentenced to two concurrent indeterminate terms of imprisonment with a minimum of twenty-five years and a maximum of life on each conviction.
In an apparent effort to avoid repugnant verdicts, the trial court instructed the jury that in the event they found defendant guilty of felony murder under either felony murder count, they need not consider the underlying predicate felony counts of burglary and robbery, nor the weapons count of the indictment. From our review of the record, we do not find that defendant was prejudiced by those instructions. Indeed, he could also have been convicted of the predicate crimes had they been submitted to the jury (People v. Berzups, 49 N.Y.2d 417, 426 N.Y.S.2d 253, 402 N.E.2d 1155; People v. Perdue, 70 A.D.2d 477, 421 N.Y.S.2d 988). Thus, the instructions favored defendant and do not constitute reversible error. It is clear from the jury's verdict that they believed defendant was guilty of a homicide that occurred during the commission of a robbery and a burglary and it was only because of the trial court's explicit instructions that the jury did not consider defendant's guilt or innocence on these charges which did not merge in the felony murder counts.
The instructions on felony murder were otherwise legally sufficient and did not improperly minimize the proof requirements of each crime. No particular degree of robbery or burglary is specified or required to constitute either one...
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People v. Johnson
...HANCOCK, J.P., and CALLAHAN, DOERR, PINE and SCHNEPP, JJ. MEMORANDUM: Defendant and his co-defendant brother (see People v. Gerald Johnson, 89 A.D.2d 814, 453 N.Y.S.2d 539, lv. denied 58 N.Y.2d 693, 458 N.Y.S.2d 1032, 444 N.E.2d 1019) were jointly tried and convicted for the felony murder o......