People v. Swartz

• Decision Date: 08 October 1987
• Citation: 130 A.D.2d 288,520 N.Y.S.2d 224
• Parties: The PEOPLE of the State of New York, Respondent, v. Dale R. SWARTZ, Sr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 224

520 N.Y.S.2d 224

130 A.D.2d 288

The PEOPLE of the State of New York, Respondent, v. Dale R. SWARTZ, Sr., Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 8, 1987.

James A. Baker, Ithaca, for appellant.

Benjamin J. Bucko, Dist. Atty. (R. James Miller, of counsel), Ithaca, for respondent.

Before MAIN, J.P., and CASEY, WEISS, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

As a consequence of a police investigation of the fatally severe beating of defendant's two-year-old stepdaughter, defendant was indicted for second degree murder under Penal Law § 125.25(2), under which a person is guilty of murder for recklessly causing the death of another person "[u]nder circumstances evincing a depraved indifference to human life". As part of his omnibus pretrial motion, defendant moved to dismiss the indictment on the ground that Penal Law § 125.25(2) was unconstitutionally void for vagueness. After the motion was denied, defendant pleaded guilty to a reduced charge of first degree manslaughter. Defendant now appeals from the resultant conviction and sentence of imprisonment.

As a preliminary matter, we reject the People's contention that defendant's guilty plea to manslaughter constitutes a waiver of his challenge to the validity of the "depraved indifference" murder section of the Penal Law. Defendant preserved his objection by duly and timely raising the issue before the trial court (cf., People v. Oliver, 63 N.Y.2d 973, 975, 483 N.Y.S.2d 992, 473 N.E.2d 242). His constitutional challenge to the validity of the original accusation in the indictment was a jurisdictional one, going to the question of his "right not to be haled into court at all upon the * * * charge" (Blackledge v. Perry 417 U.S. 21, 30, 94 S.Ct. 2098, 2104, 40 L.Ed.2d 628). A guilty plea to the crime for which he was indicted would not have precluded his attack on the constitutionality of Penal Law § 125.25(2) via this appeal (see, Haynes v. United States, 390 U.S. 85, 87, n 2, 88 S.Ct. 722, 725, n. 2, 19 L.Ed.2d 923; United States v. Ury, 106 F.2d 28 (2nd Cir.); cf., Blackledge v. Perry, supra, 417 U.S. at 31, 94 S.Ct. at 2104). Since the objection goes to the jurisdiction of the court to hold the criminal proceedings against him and was thus nonwaivable, the same result appli on a plea to a reduced charge (People v. Case, 42 N.Y.2d 98, 99-100, 396 N.Y.S.2d 841, 365 N.E.2d 872).

As to the merits, defendant contends that the phrase "under circumstances evincing a depraved indifference to human life", which elevates a reckless homicide from manslaughter to murder, is so vague and indefinite as to violate due process. We disagree. The "void for vagueness" doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement" (Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903). Of these dual purposes, the more important aspect of the doctrine is not to provide actual notice, but to mandate statutory inclusion of minimal guidelines for law enforcement agencies (id., at 358, 103 S.Ct. at 1858). The doctrine, however, recognizes that some forms of conduct which a State may validly make subject to penal sanctions cannot, and need not, be defined with precision (United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1541-1542, 91 L.Ed. 1877). The doctrine "is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited" (Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584).

Of special significance here, the vagueness doctrine does not adjudge the language of a criminal statute in the abstract, but rather in the "animating context of well-defined usage * * * and State court construction which determines its meaning" (Beauharnais v. Illinois, 343 U.S. 250, 253, 72 S.Ct. 725, 729, 96 L.Ed. 919 [citation...