People v. Terry
| Decision Date | 04 September 1984 |
| Parties | The PEOPLE, etc., Respondent, v. Patrick TERRY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Morgan Kennedy, New York City, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Gary S. Fidel, Kew Gardens, of counsel), for respondent.
Before MOLLEN, P.J., and TITONE, LAZER and MANGANO, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 30, 1981, convicting him of murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to consecutive terms of imprisonment of 25 years to life, 8 1/3 to 25 years, and 5 to 15 years, respectively.
Judgment modified, on the law (1) by reversing the conviction of attempted murder in the second degree, vacating the sentence imposed thereon, and dismissing the fourth count of the indictment, without prejudice to the People to re-present any appropriate charges to another Grand Jury; and (2) by providing that the sentences imposed upon the convictions of murder in the second degree and criminal possession of a weapon in the second degree shall run concurrently. As so modified, judgment affirmed.
Defendant was convicted of having attempted to commit murder in the second degree as that crime is defined in subdivision 2 of section 125.25 of the Penal Law, which provides:
"A person is guilty of murder in the second degree when * * * circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person".
There can be no such crime as attempted "depraved and reckless" murder. An attempt requires an intent to commit a specific crime (see Penal Law, § 110.00). One cannot attempt to commit an act which one does not intend to commit (see People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253). Murder in the second degree as defined in subdivision 2 of section 125.25 of the Penal Law involves no intent, only a culpable mental state of recklessness. Accordingly, one cannot legally be found guilty of attempted murder in the second degree by reckless conduct (cf. People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127; People v. Williams, 40 A.D.2d 1023, 338 N.Y.S.2d 980).
The sentences imposed upon the convictions of murder in the second degree and criminal...
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...Id. (citations omitted). The legal incoherence theory has also been applied to crimes of recklessness. In People v. Terry, 104 A.D.2d 572, 573, 479 N.Y.S.2d 278, 279-80 (2d Dep't 1984), for example, the Appellate Division reversed a jury conviction of attempted second degree murder, holding......
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