People v. Wilson

• Decision Date: 09 December 1974
• Citation: 80 Misc.2d 353,363 N.Y.S.2d 417
• Parties: The PEOPLE of the State of New York v. Homer WILSON, Defendant.
• Court: New York Supreme Court

Page 417

363 N.Y.S.2d 417

80 Misc.2d 353

The PEOPLE of the State of New York v. Homer WILSON, Defendant.

Supreme Court, Westchester County.

Dec. 9, 1974.

Carl A. Vergari, Dist. Atty. of Westchester County, White Plains, for the People.

Rubin, Gold & Geller, New York City, for defendant, Homer Wilson; William Mogulescu, New York City, of counsel.

DECISION

HOWARD A. JONES, Justice.

Defendant, having been convicted of attempted murder of a peace officer and other crimes, moves prior to sentence for an order declaring invalid the provisions of Penal Law § 110.05, subdivision 1, as it existed in May, 1973, categorizing the crime of attempted murder of a peace officer as a class A felony. The attack upon the statute is two-pronged:

(a) The language of the section, as it then existed, contravened the historic policy and continuing intent of the Legislature to punish any inchoate crime less seriously than the completed crime to which it relates; and

(b) The statutory provision is unconstitutionally violative of substantive due process as far as the facts of this case are concerned. The thrust of this attack, if sustained, is that the penalty for the attempted murder of a police officer ought to be treated as a class B felony as it would be if the intended victim were anyone other than a police officer.

Factual Background

Defendant was convicted after trial on several counts of a consolidated indictment. He was acquitted on several other counts. The convictions included, among others, a count of attempted murder of a police officer. Defendant and others were involved in a shoot-out with police at a Westchester railroad station in May 1973. Defendant was tried separately on these charges, severances having been granted to all defendants for a variety of reasons. The other defendants are yet to be tried.

History of the Statute

For many years in New York, prior to the effective date of the Revised Penal Law of 1967, an attempt to commit a crime was punishable by imprisonment for one-half the maximum term prescribed for the corresponding completed crime. In the case of a capital or life-term crime, the maximum penalty for the attempt was up to 25 years imprisonment (Penal Law 1909, § 261 derived from Penal Code 1881, § 686, amended L.1902, Ch. 116, § 1).

Indeed, as originally enacted, the Revised Penal Law of 1967 (Laws 1965, Ch. 1030, amended L.1967, Ch. 791) continued this distinction between inchoate and completed crimes and between the punishments therefor. It classified all attempts at one grade below that of the completed crime. Thus, under this scheme and as relevant to the issues here, murder (with the previous degrees thereof abolished) was designated a class A felony (P.L. § 125.25) punishable, along with all other A felonies, by life imprisonment (P.L. § 70.00). However, in the case of murder only, certain exceptions were enacted including that of the murder of a peace officer performing his duty. Under very particular circumstances, this crime, while still a class A felony, could be punished by imposition of the death penalty. While not mandatory, such penalty Was available (P.L. 125.30). Attempted murder (of anyone), now designated a class B felony (P.L. 110.05) was punishable by up to 25 years imprisonment (P.L. 70.00). Thus, it can be seen that a very clear distinction was initially maintained by the Legislature between attempted and completed crimes and the punishments for each.

In 1970, however, Section 110.05 was amended by the Legislature to the extent that the attempted murder of a peace officer performing his duty was upgraded to a class A felony, the same classification as that of the completed murder (L.1970, Ch. 112). As such, it could now be punished by life imprisonment under § 70.00 rather than a 25 year term as for class B felonies. Of course, the discretionary capital penalty remained available only for the completed crime. Hence, the penalties between the inchoate and completed crime, while somewhat equated, were not exactly alike in the case of peace officers. It must be noted, however, that from this point on the penalty for attempted murder of a peace officer was the same as that for the completed murder of an 'average citizen' (by one other than a lifer).

In 1972, the Legislature, in an apparent effort to more clearly demonstrate its intent to provide for this desired upgrading, amended subd. 2 of Sec. 110.05 as indicated below. The pertinent portions of that section then read:

'An attempt to commit a crime is a:

1. Class A felony when the crime attempted is murder of a peace officer in the course of performing his official duties;

2. Class B felony when the crime attempted is a class A felony Except as provided in subdivision one hereof;' (L.1972, Ch. 292, eff. Sept. 1, 1972, amended subd. 2; emphasis added).

The possible penalties for the attempted murder of a peace officer (life) and the completed murder of a peace officer (life or death) continued until about three weeks after the commission of the instant crime of attempted murder of a peace officer for which the defendant now stands convicted. On June 7, 1973, the New York State Court of Appeals in People v. Fitzpatrick, 32 N.Y.2d 499, 346 N.Y.S.2d 793, 300 N.E.2d 139, unanimously struck down as 'cruel and unusual' the discretionary capital punishment provisions of P.L. § 125.30 and 125.35 under the authority of the U.S. Supreme Court's holding in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. So from at least that June date (until Sept. 1, 1974) the possible penalties for the attempted and completed murder of a peace officer were exactly alike; i.e., life imprisonment.

Questions Presented and Discussion

Stated in its most persuasive form, defendant's first argument would seem to proceed along the following, somewhat logical, lines:

--historically, the Legislature in New York has always treated the crime of attempt to commit a felony less seriously than the completed felony itself . . . (at this point in the argument, it would have been better to acknowledge existing exceptions to this general rule of law rather than to overstate the alleged uniqueness of the penalty for attempted murder of a policeman).

--there is nothing to suggest that by the 1970 amendment the Legislature intended simply to add yet another exception to this recognized rule. On the contrary, there is every indication that precisely the opposite was intended--i.e., to provide, consistent with the existing rationale, a penalty less severe (life imprisonment) for the attempt than for the completed crime of murder of a policeman (death penalty).

--inasmuch as this clear legislative intent to distinguish between the two crimes, penalty wise, was thwarted Only as a result of court decisions relating to defects in the Form of the legislation provided, that intent can be implemented and that purpose served only by striking down the life sentence provisions of the law in question and treating this class A felony conviction as if it had been one for a class B felony--i.e., a maximum of 25 years.

The logic of defendant's position, of course, as well as the validity of any conclusions derived therefrom, depends on the soundness of each of the premises upon which the whole argument is constructed.

Upon careful examination and analysis of the defendant's first argument, the Court finds several weaknesses in its underlying structure. More importantly, even if the underlying premises, though weak, can be said to be valid, it is doubtful whether the suggested conclusion is the only one that can or should be drawn, under all the circumstances. Stated differently, the Court must consider whether the recommended medicine may not be more poisonous to the system than the illness for which it is being prescribed.

While it is true that historically the Legislature in this State has generally preferred to provide a pattern of lesser penalties for inchoate crimes, such a rule has been far from inviolate and adherence to it far from consistent.

The Model Penal Code, proposed by the venerable American Law Institute in 1959, is replete with instances in which the attempt to commit a felony is treated with the same serverity as the completed crime. Indeed, it is obvious that much of this philosophy of punishment as well as several instances of similar anomalies in the law had already found their way into New York's Penal Law long before the decision of the Court of Appeals in Fitzpatrick (supra). For example:

--with respect to the various crimes of bribery, the attempt is considered tantamount to the crime itself and has been for some time;

--with respect to murder by a defendant under the age of 18, a completed murder is no more serious than an attempt by an adult;

--with respect to the completed murder of a policeman by an adult (including May 1973), the death penalty was Not mandatory, hence such crime could upon jury determination or lack of it, be treated the same as an attempt.

--and most tellingly, with respect to subsequent legislative amendments to § 110.05 within the last two years or so, it must be noted in more than passing fashion that as the section now exists, Thirteen attempted crimes have been added and equated both in classification and in penalty with their completed counterparts and All are in varying degrees, class A felonies. Indeed, there are only two A felonies left, specifically Arson 1 and Kidnapping 1 , the attempts at which remain treated as class B felonies. Clearly, this speaks of a new direction in the Legislature's view of punishment for attempted crimes.

It can be seen from the foregoing brief analysis of legislative performance in this area, to date, that where it has been so inclined in some instances, the...