People v. Shuman

• Decision Date: 08 July 1975
• Citation: 333 N.E.2d 363,37 N.Y.2d 302,372 N.Y.S.2d 60
• Parties: , 333 N.E.2d 363 The PEOPLE of the State of New York, Respondent, v. Charles SHUMAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 60

372 N.Y.S.2d 60

37 N.Y.2d 302, 333 N.E.2d 363

The PEOPLE of the State of New York, Respondent, v. Charles SHUMAN, Appellant.

Court of Appeals of New York.

July 8, 1975.

Gretchen White Oberman, New York City, for appellant.

Eugene Gold, Dist. Atty. (Robert C. Bernius, Brooklyn, of counsel), for respondent.

COOKE, Judge.

This is an appeal from an order of the Appellate Division, which affirmed a judgment of the Supreme Court, Kings County, convicting defendant, after a trial by jury, of two counts of felony murder and sentencing him thereon to concurrent terms of imprisonment of from 15 years to life.

During the afternoon of May 5, 1969, Patrolman Levy received a radio call and then proceeded to 275 Kosciusko Street in Brooklyn. Upon entering a second-floor apartment there, he observed the decedent, subsequently identified as Alex Chafetz, in the back room, lying face up on the floor with his hands and feet bound and a handkerchief partly inside his mouth.

On May 22, 1969, police officers went to the apartment of defendant, but he avoided apprehension by denying that he was Charles Shuman. Later that day, defendant voluntarily entered the police station and, in answer to a detective's inquiry as to why they were looking for him, defendant replied: '(I)t's about the old man on Kosciusko Street.' Defendant, after being apprised of his constitutional rights, thereafter rendered a full confession. In the admission defendant stated that he and two accomplices entered the decedent's home from the rear, that the intruders were confronted by decedent and a struggle ensued, that when his accomplices started to flee, defendant summoned them back and while one ransacked the house, defendant and another tied the victim with electrical cord and then gagged decedent with a towel and handkerchief. Allegedly, Chafetz was alive when the perpetrators departed.

Dr. Di Maio, as an expert witness for the People, testified that he had observed the body of the deceased soon after the discovery. Premised upon an autopsy which he performed, the doctor opined that death occurred from asphyxiation by gagging and that it was homicidal in nature. Conceding that decedent was elderly and afflicted with arteriosclerosis, in the doctor's view, natural causes did not produce the death. No evidence was offered by defendant to support a contrary conclusion.

The defendant was tried and convicted pursuant to an indictment charging him with two counts of felony murder. In the first count the predicate felony was robbery while, in the second, burglary. At the conclusion of the court's instructions to the jury, the defendant's attorney excepted to the charge in that it omitted: 'to charge the jury of the underlying felonies of robbery, attempted robbery, burglary or attempt burglary as separate counts, as lesser included offenses, since we could visualize if the death were not found to be homicidal that the jury could find the defendant guilty.'

On this appeal defendant contends that where the felony murder form of indictment is used, the underlying felonies are lesser included offenses which must be charged to the jury if there is 'some basis' in the evidence. The refusal of the trial court to so charge, it is asserted, constituted reversible error.

At the time of trial, it being prior to the enactment of the new Criminal Procedure Law, section 445 of the Code of Criminal Procedure was the controlling provision. It provided that a jury may find a defendant guilty of any crime which is 'necessarily included' in the crime charged in the indictment.

In determining the circumstances under which the Trial Judge must charge the jury as to offenses necessarily included, the rule evolved that the...