People v. Wise

• Decision Date: 24 May 1978
• Citation: 405 N.Y.S.2d 965,94 Misc.2d 943
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Anthony F. WISE and Donald L. Wise, Defendants.
• Court: New York County Court

Page 965

405 N.Y.S.2d 965

94 Misc.2d 943

The PEOPLE of the State of New York, Plaintiff, v. Anthony F. WISE and Donald L. Wise, Defendants.

Dutchess County Court.

May 24, 1978.

Gary Palmer, Poughkeepsie, for defendant Donald L. Wise.

John R. King, Dutchess County Dist. Atty. (William J. O'Neill, Poughkeepsie, of counsel), for plaintiff.

ALBERT M. ROSENBLATT, Judge.

This is a motion by the defendant, Donald L. Wise, dated April 18, 1978, to dismiss the first two counts of the indictment on the ground that Section 125.25(3) is unconstitutional on due process grounds.

The challenge is directed at the constitutionality of the affirmative defense provision within the felony murder statute. He claims that the legislature has denied him due process of law by enacting an affirmative defense by which he must, in order to avert the thrust of the felony murder statute, affirmatively demonstrate that he fits within one of the exceptions of Section 125.25(3)(a)-(d). He asserts, in substance, that by requiring him to shoulder the burden of proof as to the applicability of these subdivisions, the statute is unconstitutional.

The Court disagrees. The statute has sustained similar constitutional attack and has been declared sound both on Fifth Amendment and Due Process grounds. It does not at all alter the prosecution's burden of proving guilt beyond a reasonable doubt, which must, as always, be established. The law does, however, relieve the defendant of statutory culpability in spite of proof of guilt beyond a reasonable doubt as to the elements of the crime by proving that he comes within one of the ameliorative exceptions. He need not disprove an element. Were that required the statute would indeed be unconstitutional (Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508).

It is this very difference which sustains the New York affirmative defense format, and which distinguishes it from the constitutionally infirm Maine statute (People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976), aff'd sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)).

The Supreme Court in Patterson made it plain that an affirmative defense provision is not necessarily tantamount to an unconstitutional transfer of burdens. The vice occurs only when the People are relieved of towing the prosecutorial mark and the defendant is made to disprove an element of the crime. During the post-Mullaney, pre-Patterson period, some courts applied the Mullaney reasoning to the "extreme emotional disturbance" affirmative defense provision of Penal Law 125.27(2)(a) and found the statute ailing. The defense cites People v. Davis, 49 A.D.2d 437, 376 N.Y.S.2d 266 and People v. White, 86 Misc.2d 803, 383 N.Y.S.2d 800. Both were reversed upon Patterson rationale (Davis at 40 N.Y.2d 835, 387 N.Y.S.2d 837, 356 N.E.2d 290, White at 59 A.D.2d 347, 399 N.Y.S.2d 660). The other cases cited by the defense, if not reversed, cannot abide Patterson, and most respectfully, may not now be regarded as the law. Indeed, the post-Patterson cases under Penal Law 125.27(2)(a) have gone the other way (People v. Myers, 58 A.D.2d 685, 395 N.Y.S.2d 758 (1977)).

The Patterson rationale, directly applicable here, has supported the constitutionality of the analagous affirmative defense provision of Penal Law 160.15(4), and its survival has been uniformly certified on appeal (People v. Coleman, 42 N.Y.2d 837, 397 N.Y.S.2d 378, 366 N.E.2d 78 (1977); People v. Woodberry, 56 A.D.2d 613, 391 N.Y.S.2d 657 (1977); People v. Felder, 39 A.D.2d 373, 334 N.Y.S.2d 992, aff'd 32 N.Y.2d 747, 344 N.Y.S.2d 643, 297 N.E.2d 522 (1973), app. dismissed sub nom. Felder v. New York, 414 U.S. 948, 94 S.Ct. 299, 38 L.Ed.2d 204; People v. Perez, 55 A.D.2d 938, 390 N.Y.S.2d 652 (1977); People v. Rodriguez, 52 A.D.2d 781, 383 N.Y.S.2d 17 (1976); People v Kapp, 55 A.D.2d 779, 389 N.Y.S.2d 645 (1976); Farrell v. Czarnetzky, 566 F.2d 381 (2d Cir.1977).

The same challenge has been rejected in People v. Manitaras, 55 A.D.2d 629, 389 N.Y.S.2d 632 (1976), and People v. Harris, 54 A.D.2d 739, 387 N.Y.S.2d 661 (1976) relative to the affirmative defense burden of Penal Law Section 215.59 in bail jumping cases.

Further, the characterization of entrapment as an affirmative defense has been held constitutional because, as here, the defendant is not compelled to disprove guilt, but notwithstanding the commission of the criminal act beyond a reasonable doubt, escapes liability if he can establish the defense. (People v. Hawkins, 84 Misc.2d 201, 374 N.Y.S.2d 1008 (1975), citing People v. Laietta, 30 N.Y.2d 68, 330 N.Y.S.2d 351, 281 N.E.2d 157, cert. denied 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809).

Lastly, the instant statute has itself been assailed on the same grounds as are raised here, with the same result (People v. Donovan, 53 A.D.2d 27, 385 N.Y.S.2d 385 (1976); People v. Kampshoff, 53 A.D.2d 325, 385 N.Y.S.2d 672 (1976)). The Donovan decision was posited on Due Process grounds, which disposes of the defendant's claim that the pre-Mullaney case of People v. Bornholdt, 33...