People v. Parker

• Decision Date: 07 February 2003
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JONATHAN PARKER, Appellant.
• Court: New York Supreme Court — Appellate Division

304 A.D.2d 146

755 N.Y.S.2d 521

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.JONATHAN PARKER, Appellant.

HURLBUTT, J.

February 7, 2003.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of counsel), for appellant.

Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), for respondent.

Eliot Spitzer, Attorney General, Albany (Robin A. Forshaw of counsel), intervenor-respondent pro se.

WISNER, J.P., SCUDDER, GORSKI and HAYES, JJ., concur.

OPINION OF THE COURT

HURLBUTT, J.

Defendant appeals from a judgment convicting him following a jury trial of murder in the first degree (Penal Law § 125.27 [1] [a] [i]), attempted murder in the first degree (§§ 110.00, 125.27 [1] [a] [i]), aggravated assault upon a police officer (§ 120.11), criminal possession of a weapon in the second degree (former § 265.03 [2]), and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]). County Court sentenced defendant to life imprisonment without parole on the murder count, 25 years to life on the attempted murder count, 12½ to 25 years on the aggravated assault count, 7½ to 15 years on the second degree weapon possession count, and 3½ to 7 years on the third degree weapon possession count. The sentence on the murder count is to run consecutively to the sentence on the attempted murder count, and the other three sentences are to run concurrently with the sentence on the attempted murder count. Except for a technical modification of defendant's sentence, we affirm.

I. Factual Background

On April 9, 1997, at approximately 12:45 A.M., two City of Buffalo police officers responded to a call concerning a stolen car. As they turned from East Parade Street onto Northampton Street, the officers observed a Ford Explorer being driven toward them, and they noticed an African-American man wearing a dark jacket, black sweatshirt, and dark pants crossing the street. One of the officers twice directed the man to stop, and when the man did not comply, the officer exited the patrol car. The other officer also exited the patrol car and, as he walked around the back of the car, he saw a muzzle flash come from the direction of the perpetrator and heard his fellow officer groan. Upon realizing that he himself had been shot in the right ankle, he radioed for police assistance, gave a description of the perpetrator, and advised in which direction the perpetrator had fled. The fellow officer died later that night of a gunshot wound.

The following day, police searched the neighborhood and recovered a jacket, a pager, a probation officer's business card, and a cap, all of which were linked to defendant at trial. The police also recovered the gun and some bullets. The most damaging evidence at trial came from the two passengers in the Ford Explorer at the time of the shooting. One of the passengers had known defendant for a couple of years and had recognized him on the night of the shootings; she testified that defendant fired his gun first and that the police officer returned fire. The other passenger had known defendant for seven years and, having had a clear view of defendant's face, had no trouble identifying defendant. He did not, however, know whether defendant or the officer had fired first. Additional circumstantial evidence supporting the identification testimony came from a witness who had known defendant for five years; approximately five seconds after hearing 10 or 11 gunshots, the witness saw defendant running down the street, wearing a black leather coat and blue jeans and carrying a gun in his hand.

Defendant was arrested and indicted, and the People thereafter filed a notice of intent to seek the death penalty. Upon trial, the jury found defendant guilty of, inter alia, murder in the first degree, and determined following a proceeding conducted pursuant to CPL 400.27 (1) that defendant should be sentenced to life imprisonment without parole for that crime.

II. Issues Related to the Death Penalty

We first address the challenges raised by defendant to New York's statutory scheme for the death penalty. First, defendant contends that the death penalty statutes (citing Penal Law § 125.27; CPL 400.27) constitute cruel and unusual punishment and deprived him of due process and equal protection. We conclude, however, that we should not address defendant's general constitutional challenges to the death penalty inasmuch as defendant was sentenced to life imprisonment without parole. It is well settled that courts should not address a constitutional issue if the case may be disposed of in any other way (see People v Harris, 98 NY2d 452, 496-497; People v Felix, 58 NY2d 156, 161, appeal dismissed 464 US 802; see also Matter of Beach v Shanley, 62 NY2d 241, 254). According to principles of judicial restraint, constitutional issues should not be decided "`unless their disposition is necessary to the appeal'" (Matter of Clara C. v William L., 96 NY2d 244, 250, quoting People v Carcel, 3 NY2d 327, 330). Here, even if we were to address defendant's general constitutional challenges to the death penalty and decide them in defendant's favor, our decision with respect to those constitutional challenges would not change the ultimate result of defendant's appeal. Thus, we do not address those challenges.

Second, defendant contends that CPL 270.20 (1) (f) is unconstitutional because it permits a "death-qualified" jury—a jury composed of members who are able to consider the death penalty—to determine a capital defendant's guilt or innocence. That contention is without merit, with respect to both the United States and New York Constitutions. The United States Supreme Court has concluded that the United States Constitution "does not prohibit the States from `death qualifying' juries in capital cases" (Lockhart v McCree, 476 US 162, 173). The Court of Appeals recently concluded that there is "no state constitutional impediment to CPL 270.20 (1) (f)" (Harris, 98 NY2d at 480) and that "[n]othing in the language of the state's constitutional counterpart of the Sixth Amendment right to a jury trial (NY Const, art I, § 2) or our jurisprudence suggests that defendant is entitled to greater protection here on state constitutional grounds" (id.).

Third, defendant contends that his prosecution was affected by the constitutional infirmity of CPL 220.10 (5) (e) and 220.30 (3) (b) (vii). Those statutory provisions were determined to be unconstitutional by the Court of Appeals in Matter of Hynes v Tomei (92 NY2d 613, 626-627, cert denied 527 US 1015), a case decided after defendant was convicted and sentenced herein. We disagree with defendant, and conclude that his prosecution was not affected by the constitutional infirmity of those statutes.

Before examining the applicability of the decision in Hynes to this case, it is helpful to examine the decision of the United States Supreme Court in United States v Jackson (390 US 570, 581-583), upon which the decision of the Court of Appeals in Hynes is based. In Jackson, the Supreme Court struck down the death penalty provision of the Federal Kidnaping Act (18 USC § 1201 et seq.) on the ground that it needlessly encouraged defendants to plead guilty and to waive the right to a jury trial in order to avoid exposure to the death penalty. Under that provision, a defendant would face the death penalty only if he or she did not plead guilty and instead chose to exercise the right to a jury trial. The Supreme Court determined that "[t]he inevitable effect of any such provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial" (Jackson, 390 US at 581).

In Corbitt v New Jersey (439 US 212), a case determined by the Court of Appeals to be distinguishable from Hynes, defendant was convicted of murder in the first degree after a trial and was sentenced to life imprisonment. The Supreme Court rejected a Jackson challenge to the New Jersey homicide statutes, which provided for a mandatory sentence of life imprisonment for a defendant convicted of murder in the first degree after trial, but for a sentence of life imprisonment or "`the same as that imposed upon a conviction of murder in the second degree'" for a defendant who pleaded non vult or nolo contendere (id. at 215). Noting that it was a "material fact" that the maximum penalty was life imprisonment and not death (id. at 217), the Court determined that there was no Jackson infirmity in the statutes because a defendant who pleaded guilty could receive the same punishment as a defendant who exercised the right to a jury trial, i.e., life imprisonment, and the "risk of that punishment is not completely avoided by pleading non vult" (id.). Thus, by its decision in Corbitt, the Supreme Court made clear that only those statutory schemes that reserve the maximum penalty for defendants who exercise the right to trial are unconstitutional under Jackson.

In Hynes and its companion case, Matter of Relin v Connell, the Court of Appeals struck down CPL 220.10 (5) (e) and 220.30 (3) (b) (vii) as facially invalid under a Jackson analysis. Under those statutory provisions, the same provisions at issue here, a defendant who pleaded guilty could escape the greater penalty of death, but a defendant who maintained his innocence and exercised the right to trial was exposed to it (see Hynes, 92 NY2d at 626). The Court determined that the statutory provisions at issue must be excised from the statutes in order to cure an unconstitutional chilling of the rights of defendants against whom a notice to seek the death penalty has been filed because the statutory scheme—just as that in Jackson—allows the death penalty only upon conviction after trial and not upon conviction by guilty plea (see id. at 620). Notably, the Court distinguished Corbitt on the ground that the statute in that case provided the same maximum penalty for all defendants, i.e.,...