People v. Lucas
Decision Date | 21 October 2008 |
Docket Number | No. 148,148 |
Citation | 11 N.Y.3d 218,897 N.E.2d 1052 |
Parties | The PEOPLE of the State of New York, Respondent, v. Delon LUCAS, Appellant. |
Court | New York Court of Appeals Court of Appeals |
An intentional killing committed in the course of and in furtherance of kidnapping in the first degree is first degree murder (Penal Law § 125.27[1][a][vii]), and an abduction during which the person abducted dies is first degree kidnapping (Penal Law § 135.25[3]). Defendant, who was indicted for first degree murder based on his killing of a person he had abducted argues that the indictment was legally insufficient because it "double counted" the death of the victim, relying on it both as an element of first degree murder and as an element of first degree kidnapping. We reject defendant's argument.
After a motion to dismiss the indictment was denied, defendant pleaded guilty to murder in the first degree and murder in the second degree. As part of the plea bargain, he signed a waiver of appeal, but the People agreed to an exception to the waiver allowing him to raise on appeal the argument he now advances. The Appellate Division affirmed (43 A.D.3d 1084, 841 N.Y.S.2d 459 [2007]). A Judge of this Court granted leave to appeal (9 N.Y.3d 1007, 850 N.Y.S.2d 395, 880 N.E.2d 881 [2007]), and we now affirm.
Defendant argues that the facts stated in the indictment do not constitute the crime of first degree murder. This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant's guilty plea (People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985]), but it fails on the merits.
Penal Law § 125.27 says, in relevant part:
Penal Law § 135.25 says, in relevant part:
The indictment in this case tracks the language of these statutes. It alleges the elements of murder in the first degree, including a killing "in the course of" and "in furtherance of" a first degree kidnapping, and it also alleges the elements of first degree kidnapping, including the abduction and the death of the person abducted. Defendant argues that the indictment is nevertheless insufficient because it violates a rule against "double counting" that defendant finds in People v. Cahill, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561 [2003]. Defendant reads Cahill too broadly.
Cahill was indicted for first degree murder based on a killing committed in the course of, and in furtherance of, burglary in the second degree (2 N.Y.3d at 62-63, 777 N.Y.S.2d 332, 809 N.E.2d 561). It is an element of second degree burglary that the person committing it "enters or remains unlawfully in a building with intent to commit a crime therein" (Penal Law § 140.25). The crime that Cahill intended to commit when he entered the building was the murder he in fact committed; thus, the same criminal intent supported both the murder charge and the aggravating factor, the burglary. Reversing Cahill's first degree murder conviction, we accepted his argument "that this circularity is impermissible" (2 N.Y.3d at 64, 777 N.Y.S.2d 332, 809 N.E.2d 561). In this case, defendant says that a similar "circularity" exists, because the victim's death is an element both of first degree murder and of the predicate kidnapping crime. We disagree.
Cahill did not hold that, in first degree felony murder cases, the murder and the predicate felony can have no common elements. The problem in Cahill was the double counting of one criminal intent. We said that Cahill's "conviction cannot stand because the burglary carried no intent other than to commit the murder" (id. at 62, 777 N.Y.S.2d 332, 809 N.E.2d 561 [emphasis added]). We explained that, in defining first degree murder — a crime which could make a...
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