People v. Mateo, 0914

• Decision Date: 25 August 1997
• Docket Number: No. 0914,0914
• Citation: 175 Misc.2d 192,664 N.Y.S.2d 981
• Parties: , 1997 N.Y. Slip Op. 97,553 The PEOPLE of the State of New York, Plaintiff, v. Angel MATEO, Defendant. /96.
• Court: New York County Court

Page 981

664 N.Y.S.2d 981

175 Misc.2d 192, 1997 N.Y. Slip Op. 97,553

The PEOPLE of the State of New York, Plaintiff, v. Angel MATEO, Defendant.

No. 0914/96.

Monroe County Court.

Aug. 25, 1997.

Kevin M. Doyle, Capital Defender (William T. Easton and Joseph T. Flood, of counsel), for defendant.

Howard R. Relin, District Attorney of Monroe County (Michael Green and Wendy Evans Lehmann, of counsel), for plaintiff.

JOHN J. CONNELL, Judge.

The headings and numbering in this Decision correspond as nearly as possible to those of the motion papers. To the extent that some issues are duplicated or overlap, there are some variances in that procedure.

The defendant is charged with three counts of Murder in the First Degree under Penal Law § 125.27(1)(a)(vii) and (xi). This Court has denied the following defense applications for substantially the same reasons stated in People v. Hale, 173 Misc.2d 140, 661 N.Y.S.2d 457: to apply heightened due process in death penalty cases; to strike the death penalty notice of intent on the grounds that the death penalty is unconstitutional facially and as applied; to dismiss on grounds that PL § 125.27(1)(a)(vii) is underinclusive; to reduce the Indictment based on double-counting of the victims' death; to declare CPL 320.10 unconstitutional under New York's Constitution; and to preclude death qualification of the jury before the guilt phase.

C. PL § 125.27(1)(a)(vii) Unconstitutionally Vague and Overbroad Claim

The defendant seeks to dismiss or reduce Count 10 of the Indictment on the grounds that Penal Law § 125.27(1)(a)(vii) is unconstitutionally vague and overbroad. The defendant argues that the term "in the course of ... and in furtherance of" has not been defined by the Court of Appeals, and has been given disparate definitions from lower courts. Therefore, this element under the statute is unconstitutionally vague and overbroad as a matter of federal and state due process. The defendant further asserts that the element "commanded another person" has never been defined by any court in New York State, and that this provision lacks a standard for determining what conduct satisfies the "commander" element, thereby making the statute unconstitutionally vague and overbroad. The defendant argues that due to this lack of clarity, the statute does not provide any way to distinguish those cases in which the death penalty may be imposed from those cases in which it may not.

When the constitutionality of a statute is challenged on the ground of vagueness, typically that particular statute involves the 1st Amendment. Penal Law § 125.27(1)(a)(vii) involves no 1st Amendment concerns. Therefore, the defendant lacks standing to claim that the statute is unconstitutionally vague on its face. The defendant can only claim that the statute is unconstitutionally vague as applied to his case (United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706; People v. Nelson, 69 N.Y.2d 302, 308, 514 N.Y.S.2d 197, 506 N.E.2d 907). Similarly, a statute can be challenged as being overbroad when a particular statute criminalizes speech (New York v. Ferber, 458 U.S. 747, 766, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113; People v. Hollman, 68 N.Y.2d 202, 208, 507 N.Y.S.2d 977, 500 N.E.2d 297). Penal Law § 125.27(1)(a)(vii) clearly does not involve or affect speech, rather it affects conduct. Murder during the course of a felony is clearly conduct that is not protected under the 1st Amendment. Therefore, the defendant lacks standing to claim the statute is overbroad on its face and as applied to him.

It is well established that penal statutes are presumed to be valid, and a criminal defendant has a "heavy burden of demonstrating that a statute is unconstitutional...." (People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355). In order for a statute not to be struck down as unconstitutionally vague, "the statute must provide sufficient notice of what conduct is prohibited ... [and] does not ... permit or encourage arbitrary ... law enforcement." Id. (People v. First Meridian Planning Corporation, 86 N.Y.2d 608, 621-622, 635 N.Y.S.2d 144, 658 N.E.2d 1017; People v. Nelson, 69 N.Y.2d 302, 307, 514 N.Y.S.2d 197, 506 N.E.2d 907 supra). However, "this doctrine recognizes that some forms of conduct which a State may validly make subject to penal sanctions cannot, and need not, be defined with precision" (People v. Swartz, 130 A.D.2d 288, 290, 520 N.Y.S.2d 224 [3rd Dept.1987]; appeal denied 70 N.Y.2d 960, 525 N.Y.S.2d 844, 520 N.E.2d 562; United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541-1542, 91 L.Ed. 1877). The defendant has failed to meet the burden of demonstrating that the statute is unconstitutionally vague and overbroad. The statute makes a crime to intentionally kill another individual in the course of and in furtherance of a felony. The statute puts the defendant on notice that this type of conduct is prohibited. To conclude otherwise would be absurd. Penal Law § 125.27(1)(a)(vii) is "sufficiently definite by its terms so as 'to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute'." (People v. Bright, supra at 382-383, 526 N.Y.S.2d 66, 520 N.E.2d 1355; quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989).

Penal Law § 125.27(1)(a)(vii) does not permit or encourage arbitrary law enforcement. The phrase "in the course of and in furtherance of" limits the types of murders that may be prosecuted as first degree murders. The defendant can only be charged under this statute if he has committed an intentional murder "in the course of ... and in furtherance of" a felony. "In the course of" has been interpreted to be a durational requirement under the statute, i.e., that the murder be committed during the commission of a felony (People v. Lewis, 111 Misc.2d 682, 686, 444 N.Y.S.2d 1003; People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736). "In furtherance of" has been interpreted as placing "a relation requirement between the felony and the homicide." (People v. Lewis, supra at 686, 444 N.Y.S.2d 1003). The statute expressly sets forth the specific enumerated felonies during which the intentional murder was committed or attempted to be committed, in order for the defendant to be charged under this statute, thereby limiting the felonies that qualify for felony murder. The defendant's conduct alleged in the Indictment tracks the language in the statute. There is nothing to suggest that he is being charged arbitrarily. Furthermore, "New York law is clear that felony murder does not embrace any killing that is coincidental with the felony, but instead is limited to those deaths caused by one of the felons in furtherance of their crime" (People v. Hernandez, 82 N.Y.2d 309, 317, 604 N.Y.S.2d 524, 624 N.E.2d 661; People v. Ryan, 263 N.Y. 298, 189 N.E. 225).

The defendant also seeks to dismiss or reduce Counts 3, 4, and 13 of the Indictment, which charge the defendant with felony murder under Penal Law § 125.25(3) on the grounds that this statute is unconstitutionally vague. Although no universal definition has been advanced by the Court of Appeals, or any lower courts, "in the course of and in furtherance of" has been an element of the felony murder statute under Penal Law § 125.25(3) for many years. Numerous cases involving felony murder have been affirmed and the constitutionality of the statute has been determined (People v. Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85; People v. Bornholdt, 33 N.Y.2d 75, 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; People v. Stokes, 88 N.Y.2d 618, 648 N.Y.S.2d 863, 671 N.E.2d 1260; People v. Britt, 212 A.D.2d 1034, 623 N.Y.S.2d 58 [4th Dept.1995]; People v. Howard, 241 A.D.2d 920, 661 N.Y.S.2d 386 [4th Dept.1997] ). The statutory language of Penal Law § 125.27(1)(a)(vii) is virtually identical to the language contained in Penal Law § 125.25(3), and both statutes clearly encompass the felony murder doctrine. Since the Court of Appeals has not held this statute to be unconstitutional, and has affirmed the language of § 125.25(3) numerous times, it can be inferred that both § 125.27(1)(a)(vii) and § 125.25(3) are clear and not vague. What makes § 125.27(1)(a)(vii) different from § 125.25(3) is that the former requires that the defendant intentionally cause the death of another individual in the course of and in furtherance of a felony, while the latter does not require intentional conduct. The element of intent distinguishes those cases in which the death penalty may be imposed and those in which it may not.

The defendant also challenges the phrase "commanded another person" as being unconstitutionally vague. The defendant's argument is unpersuasive. The term "command" has been used in the Penal Law for many years under § 20.00. This phrase, under Penal Law § 125.27(1)(a)(vii), limits the application of accessorial liability to those situations where an individual commands another person to intentionally cause the death of another individual.

Here the common sense meaning of "command" should be applied: "To direct, with authority. Power to dominate and control." (Black's Law Dictionary, 267 [6th ed. 1990] ). The use of the phrase "commanded another person" under the statute is sufficient to put the defendant on notice that it is a crime to order another person to intentionally cause the death of Juan Rodriguez-Matos. This phrase also limits the type of conduct that can be charged under this statute by law enforcement personnel because of the limited application of accessorial liability.

Accordingly, the defendant's motion to dismiss or reduce Counts 3, 4, 10, and 13 of the Indictment on the grounds that Penal Law § 125.27(1)(a)(vii) and § 125.25(3) are unconstitutionally vague and overbroad is denied.

E. PL § 125.27(1)(a)(vii) and (xi)...