# People v. Taylor

> New York Court of Appeals · October 23, 2007 · 9 N.Y.3d 129

URL: https://www.frixlaw.com/law-library/cases/9710475

## Case

- **Full name:** The People of the State of New York, Respondent, v John Taylor, Appellant
- **Court:** New York Court of Appeals
- **Decided:** October 23, 2007
- **Citations:** 9 N.Y.3d 129; 848 N.Y.S.2d 554; 878 N.E.2d 969
- **Precedential status:** Published
- **Opinion:** Concurrence by Smith
- **Judges:** Kaye and Judge Jones Concur With Judge Ciparick Judge Smith Concurs in Result in a Separate Opinion Judge Read Dissents in Another Opinion in Which Judges Graffeo and Pigott Concur
- **Cited by:** 48 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9710475

## How later opinions describe it (automated extraction)

- describing defendant's murder of five employees of fast-food restaurant in course of robbery

## Opinion text

Smith, J. (concurring).
I concur in the result, on constraint of People v LaValle ( 3 NY3d 88 [2004]).
I
The two central holdings of LaValle are that the anticipatory deadlock instruction required in capital trials by CPL 400.27 (10) is unconstitutional, and that a different anticipatory deadlock instruction, which only the Legislature can provide, is constitutionally required. Judge Graffeo, Judge Read and I dissented from both holdings. In this case, no party or amicus asks us to overrule the first holding, but amicus Criminal Justice Legal Foundation, with the tepid endorsement of the People, asks us to overrule the second. The Court is unanimous in rejecting the invitation—indeed, all six of my colleagues simply ignore it. I will explain briefly why I think the second holding of LaValle should not be overruled.
The policies underlying the doctrine of stare decisis, which include stability, predictability, respect for our predecessors and the preservation of public confidence in the courts, are at their strongest where, as here, a court is asked to change its mind although nothing else of significance has changed. No one suggests that any development in the last three years, either in the law or the law’s effect on the community, has changed the context in which LaValle was decided. Indeed, we are asked to revive the very same statute held invalid in LaValle—not a theoretically impossible step, but a radical one. So far as I can tell, we have never done such a thing, and the occasions on which other courts have done it are rare (see generally Treanor and Sperling, Prospective Overruling and The Revival of “Un constitutional” Statutes, 93 Colum L Rev 1902 [1993]).
It is true that stare decisis generally has less force when applied to a precedent that interprets a constitution (People v Bing, 76 NY2d 331, 338 [1990]). This is because an error in constitutional interpretation, if not corrected by the courts, cannot be corrected at all except through the difficult process of constitutional amendment. But here, as the plurality opinion *157 points out (plurality op at 149-150), the Legislature can undo most, though not all, of LaValle’s effect by passing a simple statute. LaValle reads the Constitution to require an anticipatory deadlock instruction telling the jurors, in substance, that the consequence of a hung jury will be life without parole. To enact such an instruction would be to redesign a relatively minor feature of the death penalty statute, and it is easy to do if the Legislature wants to do it. I thought, and still think, that LaValle was wrong in holding the redesign to be required, but the harm done by the error does not justify casting stare decisis aside.
II
LaValle also held, or at least said, “that under the present statute, the death penalty may not be imposed” (3 NY2d at 131)—i.e., that the statute was invalid not just as applied to LaValle, but in all of its applications. The dissent, of which I was the author, said nothing about this feature of the LaValle decision. In my case, at least, that silence was not an oversight; I was silent because I thought then, as I think now, that any attempt to save a remnant of the death penalty statute through an exercise in “application severability” would be a mistake. Perhaps, as today’s dissent suggests (dissenting op at 164), the LaValle majority should have explained why application sever-ability would not work; I will offer an explanation now.
I agree with much that is said in the dissent. Certainly, there was nothing coercive about the charge the trial judge gave in this case, and the statute did not prohibit him from giving it. Thus, there are cases, of which this is one, in which the 1995 death penalty statute could, under the reasoning of LaValle , be constitutionally applied. The question of application severability is whether a statute governing only those cases would be consistent with the intent of the Legislature that enacted the broader statute (see Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39, 47-48 [1992]).
The dissent says yes, arguing, in effect, that the 1995 Legislature was so eager to enact a death penalty that it would have accepted almost anything that would survive a court test (see dissenting op at 171). There is no doubt some historical truth to this, but I approach the issue differently. I ask whether the death penalty statute, after being altered to comply with LaValle , is one a sensible Legislature that anticipated the LaValle *158 decision might have enacted, and whether it bears a reasonable resemblance to the statute the Legislature did enact. I answer both of these questions no. The statute that would remain after the dissent’s proposed rescue operation would be a misshapen fragment of the original—and to achieve even that result would require a rewriting of the statute that would make it less the creation of the Legislature than of this Court.
In an effort to remove the LaValle problem from the statute, the dissent would rewrite it to provide that, before the death penalty can be considered, the trial judge must (or, perhaps, may) decide whether he or she will impose consecutive or concurrent sentences in the event of a jury deadlock. If the decision is for concurrent sentences, death is off the table, but a judge who chooses consecutive sentences may, if those sentences add up to more than the defendant’s life expectancy, announce that decision to the jury, and then let the jury choose between death and life. This describes what Justice Fisher did here—but he did it before LaValle was decided, and therefore defendant made no objection to the procedure. (Indeed, defendant asked for an even stronger instruction than the one Justice Fisher gave.) In the post-LaValle world the dissent envisions—where a procedure like this is an indispensable prerequisite to a death penalty—no defendant will consent to it. Defendants will argue that it is unprecedented, unauthorized by statute, and unfair for a judge to make an advance promise to a jury about what a sentence will be. The argument has some merit: Is not a defendant entitled to be sentenced by a judge unconstrained by any previous commitment?
I recognize that this problem may be more theoretical than practical. Most capital cases, like this one, involve horrible crimes that seem to cry aloud for the longest possible prison sentence as the only acceptable alternative to the death penalty. But the principle that the sentencer should keep an open mind until he or she actually pronounces sentence is still an important one.
Perhaps the Legislature could validly set that principle aside in some situations, and could create some procedures to make the sentencing promise more defensible; it might, for example, adopt a “scheduling” change of the kind suggested by the dissent, designed to make sure that the presentencing report precedes the judge’s charge at the punishment trial (dissenting op at 173-174). But the Legislature has not done this. The whole new way of handling death cases suggested by the dissent is one that *159 judges have thought up. It is one thing to say that a decision by the Legislature to adopt this peculiar procedure would be valid; it is another for a court to surmise that the 1995 Legislature would have adopted it, with no more basis for the surmise than that Legislature’s favorable view of capital punishment (cf. Reno v American Civil Liberties Union, 521 US 844, 884 [1997] [declining to “impose a limiting construction” on a statute that “provides no guidance what ever for limiting its coverage”]; Randall v Sorrell, 548 US 557 , —, 126 S Ct 2479, 2500 [2006] [rejecting severability where it would have required writing words into the statute or guessing at legislative intent]).
The substantive problems with the dissent’s reconstructed statute are even more serious than the procedural ones. The dissent suggests that the LaValle problem can be solved by reducing the class of defendants eligible for execution to those whose sentence in the event of deadlock would be “so lengthy in relation to life expectancy” that they would certainly die before being paroled (dissenting op at 174). But neither our Legislature nor any legislature anywhere, so far as I know, has adopted a “life expectancy” test for death eligibility—perhaps because such a test is so plainly a bad idea. Life expectancy depends on age and state of health, and neither of those should be a basis for deciding whom to execute.
The dissent recognizes this problem, but underestimates its seriousness. No doubt there will be few 70-year-old first degree murderers (see dissenting op at 172), but what about 36 year olds? John Taylor was 36 at the time of the Wendy’s murders. If he had killed only two people instead of five, he might, in the event of a jury deadlock, have faced a maximum sentence of 50 years. Would that, under the dissent’s proposed rule, be enough to make him eligible for the death penalty? What if he were 42? Certainly, on some hypothetical but plausible scenario, Taylor could be executed while, under LaValle , a 20 year old who committed the exact same crimes could not be. This does not make sense.
Perhaps, by doing even more surgery on the statute than the dissent proposes, we could solve this problem. The statute might be rewritten to make age and health irrelevant, by limiting the death sentence to defendants facing at least, say, 75 years in consecutive sentencing; the dissent may be obliquely suggesting such an arbitrary cutoff, in its remark that “a defendant-specific ‘actuarial analysis’ is not required” (dissenting op at 174). But the dissent does not embrace a simple minimum-years rule, *160 perhaps recognizing that to do so would be to travel too far from the statute the Legislature actually enacted.
I conclude that the LaValle majority was right to say that its holdings rendered the death penalty statute wholly invalid. I wish it were otherwise. Like the dissenters, I would prefer to save something of the statute, not because I want to help either side of the argument over the death penalty, but because I believe that on this issue, as on most other controversial issues of public policy, courts should defer to what legislatures decide (cf. Hernandez v Robles, 7 NY3d 338 [2006]). I continue to think LaValle was an unjustified interference with legislative authority. But, as I pointed out above, LaValle did not render the Legislature powerless. The Legislature can, if it has the will, repair the death penalty statute or repeal it. In doing either, it would bring the capital punishment issue back into the realm of democratic decision-making, where it belongs.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710475. Public record. Not legal advice.