Petition — New York v. James
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Supreme Court, U. S, ~
FILED
FFR 18 1978
“MICHAEL RODAK, JR., CLERK
IN THE
Supreme Court of the United States
October Term, 1977
No. @@-1154
THE PEOPLE OF THE STATE OF NEW YORK,
Petitioner,
against
JOSEPH JAMES,
Respondent.
JOINT PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK
EUGENE GOLD Louis J. LEFKowITz
District Attorney, Kings County Attorney General of the State of New York
Attorney for Petitioner Intervenor Petitioner, Pro Se
Municipal Building Two World Trade Center
210 Joralemon Street New York, New York 10047
Brooklyn, New York 11201 (212) 488-3441/3323
(212) 834-5000
MICHAEL Ross SAMUEL A. HIRSHOWITZ
HELMAN BROOK First Assistant Attorney General
Assistant District Attorneys
of Counsel Juces E. ORENSTEIN
Assistant Attorney General
of Counsel
——o- —_ -_--——
INDEX
The History of the Case ............ecceeeeeeeees
Cleat TGW co ccieccisccccsnsesscsucensaccens
TI | o's 566666 kn daddinbheedce davedaqeeneen
Questions Prosemted .%......cccccccccccscecccces
Constitutional Provisions at Issue ................
Ye Pere rrre rrr Tere r rere Tre
Statement of Peete 2... ccc ccs cccccscscccces News
Sammary of Argument ...-....ccccccccccccvcceses
Porxt I—New York’s death penalty provisions, in
general and as applied to respondent, are consist-
ent with the Eighth and Fourteenth Amendments
A. New York’s death penalty scheme provides for
the constitutionally mandated consideration of
possible mitigating circumstances during the
guilt determination stage at trial. As such, the
statutory scheme is consistent with this Court’s
recent decisions prohibiting mandatory death
TP PPPeTTTy yy TeTer tT Ter ery Te Ter i Te
B. Even assuming, arguendo, that the New York
death statute is deemed ‘‘mandatory,’’ the
Court of Appeals below erred in vacating and
modifying respondent’s sentence. Because re-
spondent killed a corrections officer while incar-
cerated prior to trial and facing a life prison
term, New York’s death penalty provisions
pursuant to which he was sentenced were con-
stitutional as applied to him .................
9
9
ii
PAGE
Point 1I—The determination by the New York Court
of Appeals that the Eighth and Fourteenth
Amendments render unconstitutional New York’s
death penalty scheme both generally and as ap-
plied to respondent has so significantly miscon-
strued constitutional principles of vital constitu-
tional and societal importance as to make this case
worthy of review by the Supreme Court ......... 20
ConcLusion—For all of the foregoing reasons, the
petition for a Writ of Certiorari to the Court of
Appeals of the State of New York should be
CEE 6.b nob 445000 ddennedetkesaeebecnenee 23
Appenpix A—Order of Remittitur of the New York
Court of Appeals Vacating and Modifying Re-
I SD 6. a6 6 0e dn cbcdedscdvidecnees Al
Aprenpix B—Opinion of the New York Court of
Appeals in Support of the Order of Remittitur
Vacating and Modifying Respondent’s Sentence .. A2
Statutes
United States Constitution
SE nn cnn c6uieesenseecedune 3
Fourteenth Amendment ..................05. 3
New York Penal Law
a ee al a ts eee 3
SD: codebuudvaedssnsdedaesesedes 15
ee ld ad 4, 15, 16
iii
PAGE
TABLE OF AUTHORITIES
Cases
Bigelow v. Virginia, 421 U.S. 809 (1975) ......... 19
Broderick v. Oklahoma, 413 U.S. 601 (1973) ........ 19
Dombrowski v. Pfister, 380 U.S. 479 (1965) ........ 19
Furman v. Georgia, 408 U.S. 238 (1972) ...... 9, 17, 20, 21
Greqg v. Georgia, 428 U.S. 153 (1976) ........... 9, 19, 21
Jurek v. Texas, 428 U.S. 262 (1976) .............. 9
People v. David and James, 43 N.Y. 2d 17 (1977) 9, 11-14,
16, 18-19
Profitt v. Florida, 428 U.S. 242 (1976) ............ 9
|Harry| Roberts v. Louisiana, 431 U.S. 633 (1977) 2, 8, 9,
10, 11, 18, 21
[Stanislaus] Roberts v. Louisiana, 428 U.S. 325 (1976) 9, 16,
17, 18
Woodson v. North Carolina, 428 U.S. 280 (1976) .. 16, 17-18
Miscellaneous
Stern and Gressman, Supreme Court Practice, sec-
tion 6.27, p. 282 (4th Ed. 1969) ................. 2
IN THE
Supreme Court of the United States
October Term, 1977
No.
‘o=
~)-
Tue Prope or tHe State or New York,
Petitioner,
against
JosEPH JAMES,
Respondent.
aa,
— a
JOINT PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF THE
STATE OF NEW YORK
The History of the Case
By Kings County, New York, Indictment No. 4345/1975
filed on September 23, 1975, respondent Joseph James was
accused of the crimes of Murder in the First Degree, two
counts of Murder in the Second Degree, two counts of
Attempted Murder in the Second Degree, four counts of
Assault in the First Degree, Escape in the Second Degree
and Criminal Possession of a Weapon in the Second Degree.
The respondent was convicted of all counts in the indict-
ment after a trial by jury and was, as required by New
York law, sentenced to death (Rinaldi, /.).
Respondent perfected his appeal directly to the New
York’s highest court, the Court of Appeals, pursuant to
New York Criminal Procedure Law, section 450.70(1). By
remittitur and opinion both dated November 15, 1977, a
closely divided court, by vote of four to three, with Chief
Judge Breitel dissenting, modified the judgment of convic-
tion by vacating the sentence of death and remanding for
resentencing. Upon remand, New York State Supreme
Court Justice Dominic R. Rinaldi stayed resentence pend-
ing the outcome of this petition for certiorari.
The New York State Attorney General, an intervenor
party to the action in the New York Court of Appeals, joins
the Kings County District Attorney in this petition, pur-
suant to New York State Executive Law, sections 63 and 71
and New York Civil Practice Laws and Rules section 1012
(b). (See also, Stern and Gressman, Supreme Court Prac-
fice, section 6.27, p. 282 (4th ed. 1969).)
Petitioners now apply for a Writ of Certiorari to the
Court of Appeals of the State of New York to review the
aforementioned order of that court.
Opinion Below
The opinion of the Court of Appeals is reported at 43
N.Y. 2d 17, N.E. 2d , N.Y.S. 2d (1977).
Jurisdiction
The jurisdiction of this Court rests upon 28 U.S.C.
§ 1257(3). (See also [Harry] Roberts vy. Louisiana, 431
U.S. 633 (1977).)*
* Hercinafter referred to as “[H.] Roberts v. Louisiana.”
AA eA
Questions Presented
1. Whether New York’s narrowly drawn First Degree
Murder statute, construed together with defenses which
provide opportunity to present mitigating circumstances
at the guilt determination state at trial, renders New York’s
death penalty scheme, in its totality, consistent with the
Eighth and Fourteenth Amendments to the Constitution of
the Unite] States.
2. Whether respondent’s individual status as one who
was incarcerated and facing a life prison term and who
intentionally killed a correction officer in effecting an escape
renders New York’s death penalty provisions pursuant to
which he was sentenced constitutional as applied to him.
Constitutional Provisions at Issue
The Eighth and Fourteenth Amendments to the Con-
stitution of the United States provide respectively in
pertinent part:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
... No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law;...
Statutes at Issue
‘«$ 60.06 Authorized disposition: murder in the first
degree.
When a person is convicted of murder in the first
degree as defined in section 125.27, the court shall sentence
the defendant to death.’’ Added L. 1974, e. 367, § 2.
‘*§ 125.27 Murder in the first degree.
A person is guilty of murder in the first degree when:
1. With intent to cause the death of another person,
he causes the death of such person; and
(a) Either:
(i) the victim was a police officer as defined in
subdivision 34 of section 1.20 of the criminal pro-
cedure law who was killed in the course of perform-
ing his official duties, and the defendant knew or
reasonably should have known that the victim was
a police officer; or
(ii) the victim was an employee of a state correc-
tional institution or was an employee of a local cor-
rectional facility as defined in subdivision two of
section forty of the correction law, who was killed
in the course of performing his official duties, and
the defendant knew or reasonably should have known
that the victim was an employee of a state correc-
tional institution or a loeal correctional facility; or
(iii) at the time of the commission of the crime,
the defendant was confined in a state correctional
institution, or was otherwise in custody upon a sen-
tence for the term of his natural life, or upon a
sentence commuted to one of natural life, or upon a
sentence for an indeterminate term the minimum of
which was at least fifteen years and the maximum of
which was natural life, or at the time of the commis-
sion of the crime, the defendant had escaped from
such confinement or custody and had not yet been
returned to such confinement or custody; and
(b) The defendant was more than eighteen years old
at the time of the commission of the crime.
2. In any prosecution under subdivision one, it is an
affirmative defense that:
(a) The defendant acted under the influence of extreme
emotional disturbance for which there was a reasonable
explanation or exeuse, the reasonableness of which is to be
determined from the viewpoint of a person in the defend-
ant’s situation under the circumstances as the defendant
helieved them to be. Nothing contained in this paragraph
shal! constitute a defense to a prosecution for, or preclude
a conviction of, manslaughter in the first degree or any
other crime except murder in the second degree; or
(hb) The defendant’s conduct consisted of causing or
aiding, without the use of duress or deception, another
person to commit suicide. Nothing contained in this para-
graph shall constitute a defense to a prosecution for, or
preclude a conviction of, manslaughter in the second degree
or any other crime except murder in the second degree.
Murder in the first degree is a class A-1 felony.’’ Added
L.. 1974, ¢. 367, § 5.
Statement of Facts
While incarcerated prior to trial on pending felony-
murder charges for which he faced a possible life prison
term (and for which he was eventually sentenced to life
imprisonment), the respondent, Joseph James, arranged to
_ have a gun, holster and a roll of tape ‘‘planted’’ in the
bathroom of the dental clinie of the Kings County Hospital
on the morning of September 9, 1975 by his onetime lover,
Patricia Singleton. Later that morning the respondent was
escorted into the clinic waiting area by unifermed Cor-
rections Officers George Motchan and Joseph Connor. At
his request, respondent was taken into the bathroom by
unarmed Officer Motchan, restrained only by handcuffs.
After entering, respondent took the secreted items which
had been left for him, but prematurely alerted Officer
Motchan to his escape plan when he dropped the roll of
tape.
Those in the waiting room heard seuffling, chains rattling
and a door slamming inside the bathroom. Suddenly, the
bathroom door opened and Officer Motchan, with the re-
spondent behind him, ran out and hollered to Officer Con-
nor: ‘*Joe, watch it, he has a gun’’. Officer Motchan, who
was partially out of the bathroom, was trying to get out
completely and simultaneously close the door on the re-
spondent behind him. A shot rang out and Officer Motchan
fell to the floor with a fatal bullet wound in his back. As
Officer Connor drew his gun, James, gun in hand, exited the
bathroom and opened fire on him. Officer Connor could not
use his weapon, however, because the excited and panicked
people in the clinie waiting area were in his line of fire.
Defenseless, Officer Connor ducked for cover behind the
desk but quickly moved to avoid drawing fire upon a clerk
who was already behind it.
Respondent continued shooting at Officer Connor, and
finally, one of James’ bullet hit him in the left arm and
travelled through his shoulder and chest. After he col-
lapsed on the floor, Officer Connor tried to reach for his
gun, but before he could do so, the respondent shot him
in the back. Mrs. Ann Nelson, an innocent bystander, who
was sitting in a direct line with the bathroom door and who
got up when the respondent opened fire was also shot in
the back by him. With no other obstacles remaining, the
respondent left the clinic and completed his escape.
After leaving the Kings County Hospital Clinic, James
sought refuge in the apartment of Barbara Robinson, who,
two months earlier, had been told by Miss Singleton that the
respondent would be going there. James explained his
presence to Miss Robinson by stating clearly that he had
escaped by shooting two corrections officers. The respon-
dent proudly showed her the gun he had used and the five
empty bullet casings. He told Miss Robinson that the
bullets he had fired in his eseape were designed to shatter
vital human organs upon impact. Other testimony con-
firmed that respondent’s gun had fired high-powered ‘‘soft
point bullets’? meant to expand upon impact.
When Miss Robinson told James that one of the cor-
rections officers he had shot in the escape had died, he
laughed. At no time during his ten day stay with Miss
Robinson did he appear upset or distraught concerning the
shooting. In fact respondent’s desire to eseape and his
willingness, perhaps even eagerness, to kill any corrections
officer who stood in his way was unmistakably reflected in a
letter he had sent only days earlier to one of his prior girl
friends, Deborah Smoak. The letter, the authenticity of
which was stipulated to by defense counsel at trial, in-
cluded the following telling statement:
‘*T am very serious about what I am about to say,
I am going to have an interview this week. I’m get-
ting out of here or die trying. And if I die trying, you
know me, that I am going to take someone with me,
like Earth [sic Earp] [respondent’s jargon for
Officer].
Respondent was found guilty by jury verdict. He was
subsequently sentended to death and perfected his direct
appeal, as set forth above.
Summary of Argument
Petitioners contend that the principles set forth in the
various death penalty cases decided by a ‘plurality of this
Court were incorrectly interpreted and applied by the court
below. In ruling New York’s death provisions unconstitu-
tional, and thus vacating respondent’s death sentence, the
court failed to properly recognize that the New York statu-
tory scheme takes into consideration possible ‘‘mitigating
factors’’ by making them defenses to the substantive homi-
cidai charge at trial. Hence, the statutory death scheme
does not run afoul of constitutional limitations.
the New York Court of Appeals ruled that this Court’s
decision in [//.] Roberts vy. Louisiana, supra, was ‘‘deci-
sive’’ on the issue of the constitutionality of New York’s
death sentence provisions. Yet the court below failed to
recognize that the State of Louisiana in [H.] Roberts v.
Louisiana, supra, rigidly argued that its death statute (for
the killing of a police officer) was constitutionally sufficient
on its face, there being no need for mitigating circumstances
to be shown. The constitutionality of the New York statute
now before this court is properly founded upon a considera-
tion of possible mitigating circumstances during the guilt
determination stage at trial. Certainly then, the decision
hy this Court in 1. Roberts v. Louisiana, supra, was not a
proper basis for ruling the New York statute unconstitu-
tional.
Moreover, in vacating respondent’s death sentence, the
court below overlooked the fundamental fact that, in any
ease, New York’s death statute was constitutional as applied
to respondent due to his individual status; i.e., because he
was inearcerated and facing a life prison term when he
killed a corrections officer he triggered an exception to the
general rule that a death penalty cannot be imposed without
specific consideration of mitigating circumstances.
These significant misconstruals of the Eighth and Four-
teenth Amendments in an area of vital constitutional and
societal importance it is submitted, merit correction by the
Supreme Court.
POINT I
New York’s death penalty provisions, in general and
as applied to respondent, are consistent with the Eighth
and Fourteenth Amendments.
A. New York’s death penalty scheme provides for the
constitutionally mandated consideration of ible
mitigating circumstances du the guilt determi-
nation stage at trial. As such, statutory scheme
is consistent with this Court’s recent decisions pro-
hibiting mandatory death sentences.
The issue of the death penalty and a constitutional
procedure by which it may be imposed has generated
diverse and at times apparently conflicting opinions not
only from this Court but now in New York’s highest court
as well. See e.g. [H.] Roberts v. Louisiana, 421 U.S. 633
(1977); [Stanislaus] Roberts v. Louisiana, 428 U.S. 325
(1976) ;* Jurek v. Texas, 428 U.S. 262 (1976); Profitt v.
Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S.
153 (1976) ; Furman v. Georgia, 408 U.S. 238 (1972) ; People
v. Davis and James, 43 N.Y.2d 17 (1977).** The court below,
relying solely upon Federal constitutional standards (see
43 N.Y.2d at 30, 36, footnote 4) ruled the New York statu-
tory death scheme unconstitutional because it felt this
Court’s decision in [H.] Roberts v. Louisiana, supra, to be
‘*decisive’’ on the issue. People v. James, supra, at 32. Peti-
tioners respectfully submit that neither that decision nor
any prior decision of this Court can sustain the holding of
the Court of Appeals.
* Hereinafter referred to as “[S.] Roberts v. Louisiana.”
** Hereinafter referred to as “People v. James.”
10
The key flaw of the constitutional reasoning by the court
helow was its failure to recognize the vital difference be-
tween the features of the Louisiana statute struck down in
the Roberts decisions and the totality of the New York
death scheme now before this Court. Instead, the Court
of Appeals chose to selectively interpret portions of this
Court’s language in [H.] Roberts v. Louisiana, supra (and
the cases cited therein) in an unfairly rigid and hyper-
technical manner.
In this regard, this Court can well recall that in its briefs
in |//.] Roberts v. Louisiana, supra, the State of Louisiana
did not in any way argue that its statute or scheme allowed
or required a petit jury to consider, during the guilt phase
of a trial, both aggravating and mitigating circumstances. *
Accordingly, this Court ruled only upon the Louisiana
scheme as argued and presented to it by the State of
Louisiana in both Roberts eases. This Court did not, it
would appear, in any way rule upon statutory death provi-
sions such as the New York ones held unconstitutional by
the court below.
Support for this view stems, in part, from portions of
Justice Blackmun’s dissenting opinion in [H.] Roberts v.
Louisiana, supra, at 641, wherein he observed:
‘*T should note that I do not read the per curiam
opinion as one deciding the issue of the constitu-
tionality of a mandatory death sentence for a killer
of a peace officer for all cases and for all times.* * *
* During its oral argument before this Court in [H.] Roberts v.
Louisiana, the State of Louisiana did passingly mention that some
mitigating circumstances could be shown during the guilt phase of
trial, but Roberts’ counsel disputed this contention. Louisiana essen-
tially argued that there was no necessity to afford opportunity to
present mitigating circumstances, insisting that when a police officer
is killed, there can be mitigating circumstances.
11
Finally it is possible that a state statute that required
the jury to consider, during the guilt phase of the
trial, both the aggravating circumstance of killing a
peace officer and relevant mitigating circumstances,
would pass the plurality’s test. Cf. Jurek v. Texas,
428 U.S. 262, 270-271 (1976). For me, therefore,
today’s decision must be viewed in the context of the
court’s previous criticism of the Louisiana system;
* * @ 9)
Certainly then, the majority of this Court has not cate-
gorically held that in all cases a statutory death scheme
must provide for a minimum number of possible mitigating
circumstances to be considered at the post guilt stage.*
Petitioners respectfully submit that not only have this
Court’s prior decisions not decided the issue posed by New
York’s death statute, but more importantly, those decisions
are consistent with and supportive of the constitutionality
of that statute. As Chief Judge Breitel, writing for the
dissenting minority below, so incisively explained:
‘*The Supreme Court has recognized .. . that
mandatory capital punishment statutes applicable
only in very special cases may not run afoul of con-
stitutional limitations. It is not, however, necessary
to decide whether all the categories of section 125.27
of the Penal Law constitute ‘‘special’’ cases, he-
cause the New York statute is not truly a ‘‘manda-
tory’’ capital punishment statute, as that term has
been used by the Supreme Court.
* Although this Court was made aware of New York’s mandatory
death scheme by means of the New York Amicus Brief in the [H.]
Roberts v. Louisiana litigation, no criticism was leveled against the
New York statute in this Court’s opinion in that case.
12
Crucial are the statutory defense of extreme
emotional disturbance and the limitation on convic-
tion of first degree murder to persons more than 18
years old. These mitigating circumstances are pre-
cisely the kind of factors, specific to the offense or
the offender, which the Supreme Court has required
to sustain capital punishment statutes (see, e.g.,
Gregg v. Georgia, 428 US 153, 193-195, n 44, supra).
In fact, of the eight mitigating circumstances pro-
posed by the Model Penal Code, and cited in Gregg,
six are, in some manner, reflected in the New York
statutory scheme: (1) extreme emotional disturb-
ance is a defense to murder (Penal Law, § 125.27,
subd 2, par [a]); (2) conduct causing or aiding
another to commit suicide may not bring a convic-
tion for murder (Penal Law, § 125.27, subd 2, par
[b]): (3) justification for the killing is a defense
(Penal Law, art 35); (4) duress is a defense (Penal
Law, § 40.00); (5) lack of capacity by reason of
mental disease or defect is a defense (Penal Law,
§ 30.05), and intoxication may negative the intent to
commit first degree murder (Penal Law, § 15.25;
People v. Koerber, 244 NY 147, 151-152; see People
vr. Jackson, 14 NY2d 5, 7-8); and (6) only those over
18 vears of age at the time the crime was committed
may be convicted of first degree murder (Penal Law,
$125.27, subd 1, par [b]). (See Gregg v. Georgia,
428 US 153, 193-194, n 44, supra, quoting ALI Model
Penal Code, § 210.6 [Proposed Official Draft, 1962].)
It is notable that these are factors that the
Supreme Court in the Roberts (Harry) ease (431
US —, 97 S Ct 1993, 1995-1996, supra), relied on and
quoted by the majority, stipulated as hearing upon
the validity of a capital punishment statute. New
13
York’s statutory scheme is even better in raising
these factors to complete or partial defenses.
True, other capital punishment statutes sustained
by the Supreme Court have provided for considera-
tion of mitigating factors after the jury has con-
victed defendant of the substantive offense (Gregg
v. Georgia, 428 US 153, 196-198, supra; Proffitt v.
Florida, 428 US 242, 247-253; supra; Jurek v. Texas,
428 US 262, 268-274, supra). But there is no reason
to assume that mitigating factors could not, instead,
and even preferably, be built into the definition of
the substantive offense. Indeed, the Supreme Court
itself used similar analysis in Jurek v. Texas, in-
dieating that narrowing the categories of murders
for which capital punishment may be imposed serves
much the same function as listing aggravating fac-
tors for the jury to consider (supra, p. 270). The
situation is analogous where mitigating factors are
involved. Certainly, if every possible mitigating
factor were made a defense to the substantive crime,
there would be little reason for the jury to consider
mitigating factors in making a discretionary sen-
tencing determination.
Section 125.27 of the Penal Law does not, of
course, encompass every conceivable mitigating cir-
cumstance. But the Constitution does not require so
much. It is essential only ‘‘that the capital sentenc-
ing decision allow for consideration of whatever
mitigating circumstances may be relevant to either
the particular offender or the particular offense’’
(Roberts [Harry] v. Louisiana, 431 US —, —, 97
S Ct 1993, 1996, supra). Determining what cireum-
stances are ‘‘relevant’’ must be a legislative, not
14
judicial, task, at least once it has been determined
that the Legislature has in fact decided to consider
mitigating factors.
Nor in justice to the Supreme Court should it be
assumed that that court would harden for all time
under constitutional standards all conceivable cate-
gories of mitigating circumstances or that all must
be accorded recognition, or that the procedure for
their recognition must follow a particular pattern
laid down by the court. It has had much too much
trouble with this very problem not to be more flexi-
ble. The very caveats and provisos in its most recent
opinions make this point explicit so that it is not
necessary to have recourse to inference. Moreover,
that court addresses constitutional principles and
does not purport to write or dictate a statutory
criminal code.
To recapitulate, it has never been held that all
mandatory capital punishment statutes violate the
cruel and unusual punishment clause of the Con-
stitution. At least in a narrowly drawn category of
special cases, a category which may be broad enough
to include the entire New York statute, failure to
provide for consideration of mitigating factors does
not make a capital punishment statute constitution-
ally defective. But, in any event, the New York
statute, although written in mandatory terms, is not
embracively mandatory in that it does not encom-
pass, indiscriminately and without consideration of
mitigating factors, a mass aggregation of crimes.
Thus, since section 125.27 of the Penal Law does
require the jury to consider mitigating factors as
elements of the substantive crime of first degree
murder, there is no constitutional violation.’’ People
v. James, supra at pp. 42-45.
15
Thus, the New York statutory death scheme provides
for the constitutionally mandated consideration of possible
mitigating circumstances at the guilt determination stage
at trial. Since such a legislative construct is consistent
with this court’s plurality decisions concerning mandatory
death statutes, the court below clearly erred in holding the
New York statute unconstitutional and in vacating and
modifying the respondent’s death sentence.
B. Even assuming, arguendo, that the New York death
statute is deemed “mandatory,” the Court of
Appeals below erred in vacating and modifying
respondent’s sentence. Because respondent killed a
corrections officer while incarcerated prior to trial
and facing a life prison term, New York’s death
penalty provisions, pursuant to which he was sen-
tenced were constitutional as applied to him.
Even assuming, arguendo, that the New York death
statute is considered ‘‘mandatory’’ and thus unconstitu-
tional in the general sense, respondent’s death sentence
should nonetheless have been affirmed by the court below.
Respondent was sentenced to death because of the inter-
play of New York Penal Law Section 125.27(1) (a) (ii)’s
‘*the victim was an employee of a state correctional institu-
tion’’ language and the actual factual circumstance that
respondent killed a correctional employee while under in-
dictment for Murder in the Second Degree, a class A-1
felony for which respondent faced and was eventually sen-
tence to a maximum term of life imprisonment. (Penal
Law section 70.00(2).) The petitioners submit that under
the facts of this case, this Court should construe the chal-
lenged death provisions narrowly so as to render them
constitutional and accordingly reinstate the sentence of
death imposed by the trial court.
Rather than analyze the narrow application of the death
statute to the respondent, the court below held broadly that
16
the Penal Law section 125.27 is unconstitutional because it
does not provide for ‘‘consideration of relevant and par-
ticularized mitigating factors’’ (43 N.Y.2d at 37). While it
is true that generally such ‘‘particularized consideration’”’
is a constitutionally indispensable part of the process of
inflicting the penalty death’’ (Woodson v. North Carolina,
428 U.S. 280, 304 (1976) ) the court below failed to meaning-
fully address the strong qualifying and restrictive language
in Woodson and later cases which is crucial to a determina-
tion of the constitutionality of the New York statute as
applied to respondent. This Court’s plurality opinion in
Woodson states unequivocally that its conclusions and its
language concerning the mandatory North Carolina death
statute do not necessarily apply to more narrowly ad-
dressed statutes:
‘*This case does not involve a mandatory death
penalty statute limited to an extremely narrow cate-
gory of homicide, such as murder by a prisoner,
serving a life sentence, defined in part in terms of
the character or record of the offender. We thus
express no opinion regarding the constitutionality of
such a statute. See n. 25 infra.’’ Id. at 287, fnte. 7
(emphasis added).
The import of the language in Woodson of ‘‘defined in
large part in terms of the character or record of the of-
fender’’ is clarified by reading it in conjunction with the
case of [S.] Roberts v. Louisiana, supra. There this Court
explained:
‘‘Only the third category of the Louisiana first
degree murder statute, covering intentional killing by
a person previously convicted of an unrelated mur-
der, defines the capital crime at least in significant
part in terms of the character or record of the indi-
17
vidual offender. Although even this narrow category
does not permit the jury to consider possible miti-
gating factors, a prisoner serving a life sentence
presents a unique problem that may justify said
laws...’ 428 U.S. 329-33 (emphasis added).
Thus this Court, although repeatedly striking down
mandatory death penalties, carefully reserved judgment in
instances such as the case at bar in which the narrow
category of offender includes an inmate who might feel he
stands to lose nothing should he commit murder.
In fact, in its historical review of mandatory death
schemes across this country, this Court in Woodson v.
North Carolina, supra, observed that statutes concerning
homicide committed by incarcerated defendants were among
the few mandatory death statutes frequently found in the
pre-Furman era. Significantly, this Court reserved finding
such statutes unconstitutional in its holding in Woodson:
‘‘The only category of mandatory death sentence
statutes that appears to have had any relevance to
the actual administration of the death penalty in the
years preceding Furman concerned the crimes of
murder or assault with a deadly weapon by a life-
term prisioner. Statutes of this type apparently
existed in five States in 1964.... In 1970, only five
of the more than 550 prisoners under death sentence
across the country had been sentenced under a man-
datory death penalty statute. Those prisoners had
all been convicted under the California statute ap-
plicable to assaults by life-term prisoners.... We
have no occasion in this case to examine the con-
stitutionality of mandatory death sentence statutes
applicable to prisoners serving life sentences.’’ 428
18
U.S. at 292, fnte. 25; citations omitted (emphasis
added).
Perhaps most important in this regard is this Court’s
decision in [H.] Roberts v. Louisiana, supra. Having once
hefore struck down Louisiana’s mandatory death statute
in [S.] Roberts v. Louisiana, supra, this Court pithily em-
phasized that even the intentional murder of a police officer
did not warrant a statute that did not consider relevant
‘mitigating cireumstanees.’’ Yet this Court in two sepa-
rate parts of its brief opinion again reserved judgment
where **the unique problem’’ of a prisoner serving a life
sentence is involved (431 U.S. 632, fnte. 2, 637, fnte. 5).
This Court’s conscious decision in Woodson v. North
Carolina, supra, and its progeny to exclude from its blanket
disapproval of mandatory death schemes those provisions
aimed at deterring those who believe they have nothing left
to lose was well-founded and necessary. It may well be
that there can be no effective deterrence to one already
serving a life prison term except the knowledge that the
intentional killing of a corrections officer will without ques-
tion result in his execution. The deterrent effect would be
especially keen in those instances where a prisoner might
choose to kill a corrections officer in order to escape.
Petitioners submit that there is no constitutionality
significant distinction between this Court’s explicit ‘‘lifer
exception’* and the case at bar. There can be no substan-
tially different deterrent effect npon one already sentenced
to a life term of imprisonment from one presently incar-
cerated, perhaps convinced that the case against him is
overwhelming, and facing a life prison term. Indeed Chief
Judge Breitel, dissenting below, observed:
‘*The life prisoner presents a special case, accord-
ing to the Supreme Court, because there may be no
19
satisfactory deterrent other than the death penalty.
But the Court did not hold that only in a case of a
life prisoner may a mandatory capital punishment
statute be applied. Only a weak imagination would
fail to perceive other cases just as special as that of
the life prisoner. For instance, belief that a soldier
is frightened of death and considering desertion in
time of war may justify the threat of capital punish-
ment to keep him at his station. And, of course, a
prisoner like appellant James in the instant case,
not yet sentenced to life imprisonment, but facing a
murder charge which could well bring upon him such
a sentence, presents a case no different from that of
a life prisoner.’’ People v. James, supra, at 43.
The certainty of death for the murder of a corrections
officer, during a desperate escape for example, may deter
some, though not all, such homicides. ‘‘[T]here are some
categories of murder, such as murder by a life prisoner,
where other sanctions may not be adequate.’’ Gregg v.
Georgia, supra at 186; footnote omitted. And the judgment
of the New York Legislature that such a death scheme is
necessary should not be overruled since the ‘‘value of
capital punishment as a deterrent of crime is a complex
factual issue the resolution of which properly rests with
legislatures .. .’’ (Id.)
Thus, not only is New York’s death statute constitu-
tional due to the consideration of possible mitigating
circumstances at trial but, in addition, the statute’s specific
provisions as applied to respondent are independently
constitutional and may be narrowly construed as such.
See e.g. Bigelow v. Virginia, 421 U.S. 809, 816, (1975) ;
Broderick v. Oklahoma, 413 U.S. 601 (1973); Dombrowski
v. Pfister 380 U.S. 479 (1965).
20
We submit, then, that the court below fundamentally
misconstrued the principles set forth in this Court’s numer-
ous death penalty decisions in its holding unconstitutional
New York's statutory death scheme and its vacateur and
modification of respondent’s sentence to death. As such
the order below should be reversed.
POINT II
The determination by the New York Court of Appeals
that the Eighth and Fourteenth Amendments render
unconstitutional New York’s death penalty scheme both
generally and as applied to respondent has so signifi-
cantly misconstrued constitutional principles of vital
constitutional and societal importance as to make this
case worthy of review by the Supreme Court.
As demonstrated in Point -l, supra, the hoiding of the
New York Court of Appeals below was erroneous under
federal constitutional law upon which it was solely decided.
Petitioners recognize that not every State case wrongly
decided under the Constitution is deserving of review by
the Supreme Court. We submit, however, that the degree
to which the opinion below has distorted the principals of
the Kighth and Fourteenth Amendments in an area of vital
societal importance renders appropriate a review of this
case by the Supreme Court.
This nation’s continuingly intense concern for appropri-
ate and effective deterrence, as well as punishment, to those
who would choose intentionally to kill is well reflected by
the events of recent years. In the wake of Furman vy.
(ieorgia, supra, decided in 1972, state legislatures across
the country attempted to bring their statutory death
schemes in line with what they perceived te be evolving
constitutional guidelines. In 1976, this Court reexamined
21
the concept of the death penalty and held that it was not
per se cruel and unusual. Gregg v. Georgia, supra at 187.
In five separate plurality opinions this Court analyzed
historical and contemporary attitudes and concluded that
the legislative response to Furman indicated a clear so-
cietal endorsement of the death penalty. Id. at 29 fnte.23.
Yet this Court’s decisions of 1972 and 1976 as well as the
more recent decision in [H.] Roberts v. Louisiana, supra,
have not given clear guidance to state legislatures concern-
ing the specific type of penalty construct that will satisty the
constitutionally mandated consideration of possible miti-
gating circumstances.
For all that has been said and all that has been written,
it is clear from the discussion in Point I, supra, that this
Court has not addressed itself to a statutory death scheme
that allows mitigating circumstances to be proferred and
weighed at the guilt determination stage as opposed to
the post verdict stage at trial. And, it is in fact this
ambiguity in the decisions and reasoning of this Court that
brings the petitioners here in our Writ of Certiorart.
Significantly, the problems posed by the error of the
court below transcend the mere constitutionality of respon-
dent’s sentence in this ease. Society’s vital interest in the
death penalty makes inevitable the conclusion that the prob-
lem posed by this case will be a recurring one. Even now
individual states across the country are in the process of
refashioning their statutory death penalty provisions to
comport with the new guidelines of this Court. Yet remain-
ing unanswered is the question of the constitutionality of
any such statutes which provide for mitigating cireum-
stances to be considered at the guilt determination stage.
Surely, an examination by this Court of the merits of the
case at bar will give significant guidance to those legisla-
22
tures and may well avoid repeated and lengthy litigation
on the constitutional ambiguities which yet exist.
An additional recurring question posed by this case is
the specific parameters of what has been denominated as
the ‘‘lifer-exception’’ to this Court’s blanket prohibition
to mandatory death provisions. This Court has pointedly
and repeatedly emphasized that an intentional murder by
one already serving a life prison term suggests a ‘‘unique’’
problem which may justify a mandatory death penalty
deterrent. State legislatures are now without any guidance
in this regard for they do not know whether this Court
would in fact recognize a ‘‘lifer-exception’’. Moreover, if
such a ‘‘lifer-exception’’ is constitutionally acceptable it
is unclear what specific category of prisoner the exception
may embrace. If it is true that ‘‘lifer-exception’’ is valid
because no deterrent other than a mandatory penalty will
work with an individual already serving a life term, then
it is equally applicable to the prisoner facing a life prison
term as was the situation of the respondent herein. Regret-
tably, at this time, state legislatures are without guidance
from this Court on the appropriate, constitutionally accept-
able, deterrent to those prisoners for whom a life-sentence
would be no deterrent at all.
Petitioners respectfully submit that the Supreme Court
review this ease not only in order to correct the error in the
court below, but more importantly, to give guidance to legis-
latures across the nation concerning ambiguities in the case
law surrounding the imposition of the death penalty. This
case provides an ideal and timely vehicle for this Court to
announce that where the death sentence may be imposed
the process of examining possible mitigating circumstances
can be accomplished at the guilt determination stage at trial.
Equally important, by granting the Writ of Certiorari this
Court will be in a position for the first time of delineating
23
the constitutional parameters of the ‘‘lifer-exception’’ so
that state legislatures may draft needed legislation ac-
cordingly.
Surely then, this case provides a needed opportunity
for the Supreme Court to speak on issues of vital constitu-
tional and societal importance. .
Dated: Brooklyn, New York
February, 1978
CONCLUSION
For all of the foregoing reasons, the petition for a
Writ of Certiorari to the Court of Appeals of the State
of New York should be granted.
Respectfully submitted,
EUGENE GOLD
District Attorney, Kings County
Attorney for Petitioner
Municipal Building
210 Joralemon Street
Brooklyn, New York 11201
(212) 834-5000
MICHAEL Ross
HELMAN BROOK :
Assistant District Attorneys
of Counsel
Louis J. LEFKOwITz
Attorney General of the State of New York
Intervenor Petitione-, Pro Se
Two World Trade Center
New York, New York 10047
(212) 488-3441/3323
SAMUEL A. HIRSHOWITZ
First Assistant Attorney General
JuLes E. ORENSTEIN
Assistant Attorney General
of Counsel
APPENDICES
Al
APPENDIX A
Order of Remittitur of the New York Court
of Appeals Vacating and Modifying
Respondent’s Sentence
COURT OF APPEALS
State oF New York
The Hon. Cuarues D. Brerret, Chief Judge, Presiding
No. 467
fay
Vv
THe Propte or THE State or New York,
Respondent,
VS.
JosEPH JAMES,
Appellant.
ray
_
The appellant(s) in the above entitled appeal appeared
by James W. B. Bankard; the respondent(s) appeared by
Eugene Gold, District Attorney of Kings County.
The Court, after due deliberation, orders and adjudges
that the judgment is modified and the case remitted to
Supreme Court, Kings County, for resentencing in accord-
ance with the opinion herein and, as so modified, affirmed.
Opinion by Cooke, J. All concur except Breitel, Ch. J., who
dissents and votes to affirm in an opinion in which Jasen
and Gabrielli, JJ., coneur.
The Court further orders that the papers required to
be filed and this record of the proceedings in this Court be
remitted to the Supreme Court, Kings County, there to be
proceeded upon according to law.
I certify that the preceding contains a correct record
of the proceedings in this appeal in the Court of Appeals
and that the papers required to be filed are attached.
/s/ JosepH W. Be.uacosa
JosEpH W. Betuacosa, Clerk of the Court
Court of Appeals, Clerk’s Office, Albany, November 15,
1977.
APPENDIX B
Opinion of the New York Court of Appeals in
Support of the Order of Remittitur Vacating
and Modifying Respondent’s Sentence
Bl
PEOPLE v DAVIS [43 NY2d 17] 17
Statement of Case
THe PEopLE OF THE STATE OF New York, Respondent, v
JosePH Davis, Appellant.
THe PEeopLeE OF THE StaTeE oF New York, Respondent, v
JOSEPH JAMES, Appellant.
Argued September 7, 1977; decided November 15, 1977
SUMMARY
APPEAL, in the first above-entitled action, from a judgment
of the Supreme Court (Howarp A. Jones, J.), rendered Decem-
ber 15, 1975 in Westchester County, upon a verdict which
convicted defendant of murder in the first degree, robbery in
the first and second degrees and criminal possession of a
weapon.
APPEAL, in the second abcve-entitled action, from a judg-
ment of the Supreme Court (Dominic S. Rina.pi, J.), rendered
November 22, 1976 in Kings County, upon a verdict which
convicted defendant of murder in the first degree, murder in
the second degree, attempted murder in the first degree,
assault in the first degree, escape in the second degree, and
criminal possession of a weapon in the second degree.
The trial court in each case sentenced the respective defend-
ants to death as required by sections 60.06 and 125.27 of the
Penal Law. .
The Court of Appeals (Cooxs, J.) held in the first above-
entitled action that the facts do not support guilt of murder in
the first degree, since there is doubt whether the murder
victim was acting within the scope of his duty as a police
officer, and the court, accordingly, modified the judgment,
vacating the sentence of death and remitting the case for
resentencing for murder in the second degree. The court found
the defendant in the second above-entitled case to be guilty of
murder in the first degree and held that the mandatory death
penalty for killing a corrections officer *» invalid under United
States Supreme Court rulings, since there is no provision for a
consideration of mitigating factors or information pertaining
thereto, and the court, accordingly, modified, vacating the
death penalty and remitting for resentencing for murder in
the second degree.
HEADNOTES
Crimes — Identification of Defendant
1. Under the circumstances that a witness identified an exhibit as “sup-
_
B2
18 43 NEW YORK REPORTS, 2d SERIES
Statement of Case
posed to be the photograph of the robber” and said that the photo and
another were distorted from pictures he had seen on a viewing screen, that
“[t}hese are not the guys I picked” and that “these are the photographs they
handed me as being the robber here and the shooter here, and | disagreed
* * * (bjecause of the facial features, that they’re wrong”, it cannot be said
that the rejection of the exhibit was error.
Crimes — Evidence — Admissibility
2. A party’s attempt to procure false testimony or to corrupt a witness,
though collateral to the issues, is competent as an admission by acts and
conduct that the party’s case is weak and its evidence dishonest, and the
fact that evidence was fabricated is admissible even though the evidence
itself was not used.
District and Prosecuting Attorneys — Prosecutorial Misconduct
3. There is no indication, much less proof, of falsification on the part of
the police or misconduct such as bribery of a witness nor any “fastening” of
such wrongdoing to the prosecution based upon a witness’ testimony that a
statement was taken from him under duress, where the signed statement
was not offered or received in evidence.
Evidence — Relevance
4. Relevant evidence is evidence having any tendency in reason to prove
any material fact and tending to convince that the fact sought to be
established is so.
Evidence — Probative Value
5. Even if evidence is proximately relevant, it may be rejected if its
probative value is outweighed by the danger that its admission would
prolong the trial to an unreasonable extent without any corresponding
advantage; or would confuse the main issue and mislead the jury; or
unfairly surprise a party; or create substantial danger of undue prejudice to
one of the parties.
Crimes — Collateral Issues — Prejudice
6. Since an attempt by the defense to introduce a witness’ testimony that
he was coerced to make a statement, not offered in evidence by the People,
was for the obvious purpose of creating the impression that a substantial
portion of the prosecution’s proof was tainted in a fashion similar to the
proffered account, the probative value of the testimony could be outweighed
by dangers that the main issue would be obscured by prolongation of trial
and by the solid possibility of undue prejudice to the prosecution, and,
accordingly, the discretion of the trial court was not abused.
Crimes — Evidence — Newly Discovered Evidence
7. There is no merit to defendant's assertion of error because of the denial
of a new trial, since the newly discovered evidence which formed the basis
of the motion would be relevant only if one accepted the alibi testimony of
defendant, his relatives and friends, which proof was not accepted by the
jury, and since defense counsel was aware of the evidence during trial.
Crimes — Murder — Killing of Police Officer in Line of Duty
8. While the facts support a conviction of the crime of murder in the
second degree, proof of guilt beyond a reasonable doubt as to all of the
elements of the crime of murder in the first degree is not made out by a
B3
PEOPLE v DAVIS [43 NY2d 17] 19
Statement of Case
showing that defendant killed a policeman who asserted that he was an
officer when restrained by defendant from leaving a supermarket on his way
to report for duty, since there continues to be doubt concerning whether the
victim was acting in the line of duty when he was killed, which is one of the
elements of murder in the first degree as specified by the Legislature.
Crimes — Murder — Death Penalty
9. There is proof beyond a reasonable doubt of guilt of murder in the first
degree of a defendant who, while attempting to escape custody, shot a
corrections officer, and defendant, accordingly, comes within New York’s
death penalty statute which provides a mandatory death sentence for all
persons over 18 years of age found to have intentionally caused the death of
a police officer or a State or local corrections facility officer in the line of
duty, where defendant knew or had reason to know the victim was such an
officer or employee, or caused the death of anyone if defendant was confined
or in custody for a life term or upon an indeterminate sentence with a
maximum of life and a minimum of at least 15 years or if defendant had
escaped from such confinement or custody and had not yet been returned.
Statutes — Presumption of Constitutionality
10. State statutes imposing the death penalty for first degree murder
(Penal Law, §§ 60.06, 125.27) carry with them a strong presumption of
constitutionality and should-be stricken as unconstitutional only as a last
resort without substitution of the judgment of the courts for that of the
Legislature as to the wisdom and expendiency of the legislation.
Courts — Supreme Court Rulings
11. The court is bound by rulings of the United States Supreme Court as
to the validity of State statutes under the United States Constitution.
Constitutional ow — Mandatory Death Penalty — Circumstances
12. Unconstitutionality of New York’s death penalty statute for murder of
a corrections officer (Penal Law, §§ 60.06, 125.27, subd 1, par [a], cl [ii]) is
indicated by the fact that the statute provides neither for the furnishing of
information, without which there can be no consideration of the individual
offender and the circumstances of a particular offense, nor standards to
guide the sentencing authority in the use of that information had it been
furnished.
Constitutional Law — Mandatory Death Penalty — Mitigating Factors
13. Since the New York death penalty statute for murder of a corrections
officer (Penal Law, §§ 60.06, 125.27, subd 1, par [a], cl [ii]) “does not allow
consideration of particularized mitigating factors” for purposes of “the
capital sentencing decision” as to “the particular offender”, it is unconstitu-
tional.
Constitutional Law — Mandatory Death Penalty — pittestten Factors
14. Although the statutory framework of New York’s death penalty
statute for murder of a corrections officer (Penal Law, §§ 60.06, 125.27, subd
1, par [a], cl [ii})) may in some manner reflect various mitigating factors as
defenses, that is not enough to save New York’s death penalty statute from
constitutional infirmity, since similar defenses are found in other jurisdic-
tions, including those whose death penalty statute has been held unconstitu-
tional by the Supreme Court, and such limitations do not afford individual-
ized consideration of the offender because defenses relate to guilt or inno-
B4
20 43 NEW YORK REPORTS, 2d SERIES
Points of Counsel
cence, whereas a mitigating factor may be of no significance to a determina-
tion of criminal culpability and will not rise to the level of a defense.
Crimes — Mandatory Death Penalty — Mitigating Factors ,
15. The defenses under New York’s death penalty statute for murder of a
corrections officer (Penal Law, §§ 60.06, 125.27, subd 1, par [a], ct [ii}) do not
allow an individualized consideration of the character, propensity, record or
attributes of the individual offender as required by the Supreme Court, since
the defenses simply do not present the required information and do not
permit a jury which has rejected these defenses and has found a defendant
guilty of murder in the first degree to then mitigate the punishment by
resurrecting the defenses.
Crimes — Capital Cases — Scope of Review
16. Under the State Constitution, in capital cases in which the sentence of
death has been imposed, the Court of Appeals is vested with the power to
and must review the facts (NY Const, art VI, §§ 3? 5) to determine their
sufficiency to make out a case of murder beyond a reasonable doubt and
determine that the evidence is of such weight and credibility that the jury
was justified in finding the defendant guilty beyond a reasonable doubt.
Constitutional Law — Mandatory Death Penalty — Constitutionality
17. Under the United States Constitution, the death penalty is not per se
unconstitutional.
TOTAL CLIENT-SERVICE LIBRARY* REFERENCES*
CLS, Penal Law §§ 60.06, 125.27
21 Am Jur 2d, Criminal Law §§ 595, 613; 40 Am Jur 2d,
Homicide §§ 549-557
ANNOTATION REFERENCE
Effect of abolition of capital punishment on procedural
rules governing crimes punishable by death—post-Furman
decisions. 71 ALR3d 453.
* By the Publisher's Editorial Staff.
POINTS OF COUNSEL
James J. Duggan and David E. Kendall for appellant in the
first above-entitled action. I. Defendant’s guilt was not proved
beyond a reasonable doubt. (People v Dillon, 197 NY 254;
People v Patterson, 39 NY2d 288; Matter of Winship, 397 US
358; Cool v United States, 409 US 100; Ivan v City of New
York, 407 US 203; Mullaney v Wilbur, 421 US 684; Speiser v
Randall, 357 US 513.) Il. The court erred in having refused to
admit People’s Exhibit 35 into evidence. III. It was error to
have refused to allow the witness Smith to testify. (Chambers
v Mississippi, 410 US 284; Washington v Texas, 388 US 14;
BS
PEOPLE v DAVIS [43 NY2d 17] 21
Points of Counsel
Cool v United States, 409 US 100; Herring.v New York, 422
US 853.) IV. It was error to have denied defendant’s motion
for a new trial. (People v Moltesen, 282 App Div 1090.) V. At
the time of the shooting, the victim was not acting as a police
officer. VI. The statute fixing death as the punishment for the
murder of a police officer is unconstitutional. (Barbier v Con-
nolly, 113 US 27; Barrett v Indiana, 229 US 26.) VII. The
death penalty statute under which appellant was condemned —
is unconstitutional. (People v Fitzpatrick, 32 NY2d 499; Fur-
man v Georgia, 408 US 238; Woodson v North Carolina, 428
US 280; Roberts v Louisiana, 428 US 325; Williams v Okla-
homa, 428 US 907.)
Carl A. Vergari, District Attorney (B. Anthony Morosco and
Janet Cunard of counsel), for respondent in the first above-
entitled action. I. Defendant’s guilt was proved beyond a
reasonable doubt. II. Defendant's claim of newly discovered
evidence does not justify a new trial. III. It was not error to
refuse to admit People’s Exhibit 35 into evidence. IV. It was
not error to have barred the witness Smith from giving
irrelevant, immaterial and prejudicial testimony. (People v
Sapia, 41 NY2d 160.) V. The victim was acting as a police
officer at the time of the shooting. VI. The New York death
penalty is constitutional. (People v Fitzpatrick, 32 NY2d 499;
Gregg v Georgia, 428 US 153; Furman v Georgia, 408 US 238;
Woodson v North Carolina, 428 US 280; Winston v United
States, 172 US 303; Williams v New York, 337 US 241;
McGautha v California, 402 US 183; Roberts v Louisiana, 428
US 325; Washington v Louisiana, 428 US 906; Jurek v Texas,
428 US 262; Proffitt v Florida, 428 US 242.)
Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein
and Samuel A. Hirshowitz of counsel), in his statutory capac-
ity under section 71 of the Executive Law in the first above-
entitled action. New York’s death penalty is constitutional.
(People v Patterson, 39 NY2d 288; Furman v Georgia, 408 US
238; People v Fitzpatrick, 32 NY2d 499; Gregg v Georgia, 428
US 153; Proffitt v Florida, 428 US 242; Jurek v Texas, 428 US
262; Woodson v North Carolina, 428 US 280; Roberts v Louisi-
ana, 428 US 325; McGautha v California, 402 US 183; Green v
Oklahoma, 428 US 907.)
James W. B. Benkard and Phebe C. Miller for appellant in
the second above-entitled action. I. Appellant’s guilt as to the
count of murder in the first degree was not proved beyond a
B6
22 43 NEW YORK REPORTS, 2d SERIES
Points of Counsel
reasonable doubt. (People v Horton, 18 NY2d 355; People v
Jackson, 18 NY2d 516.) Il. The court’s Sandoval ruling, allow-
ing cross-examination of appellant concerning certain prior
charged but not proven offenses, constituted prejudicial error
requiring a retrial. (People v Sandoval, 34 NY2d 371; People y
Branch, 34 AD2d 541, 27 NY2d 834; People v Carmack, 52
AD2d 264; People v Mallard, 78 Misc 2d 858; Gordon v United
States, 383 F2d 936; Jackson v Osborn, 2 Wend 555; People v
Cascone, 185 NY 317; People v Balsano, 51 AD2d 130; People
v Porter, 47 AD2d 908; People v Hepburn, 52 AD2d 958.) ITI.
The trial court violated the Principles of Witherspoon v IIli-
nois in dismissing six veniremen. (Witherspoon vy Illinois, 391
US 510; Taylor v Louisiana, 419 US 522; Woodson v North
Carolina, 428 US 280; Boulden y Holman, 394 US 478; Max-
well v Bishop, 398 US 262: Wilson v Florida, 403 US 947;
. Wigglesworth v Ohio, 403 US 947; Harris v Texas, 403 US
947; Davis v Georgia, 429 US 122; Adams v Washington, 403
US 947.) IV. The death penalty provisions u ter which appel-
lant was ‘sentenced are unconstitutional. (People v Velez, 88
’ Mise 2d 378; Woodson v North Carolina, 428 US 280; Roberts
v Louisiana, 428 US 325; Williams y Oklahoma, 428 US 907;
Furman v Georgia, 408 US 238: People v Fitzpatrick, 32 NY2d
499; Williams v New York, 337 US 241; Jurek v Texas, 428
US 262; Mullaney v Wilbur, 421 US 684; People v Patterson,
39 NY2d 288.)
Eugene Gold, District Attorney (Michael S. Ross of counsel),
for respondent in the second above-entitled action. I. The
evidence was sufficient to support the jury’s verdict and no
reversible error was committed by either the court or the
prosecutor. (People v Cerullo, 18 NY2d 839; Moccio v New
York, 387 US 946; People v Monaco, 14 NY2d 43; People v
Mullin, 41 NY2d 475; People v McQueen, 18 NY2d 337; People
v Horton, 18 NY2d 355, 387 US 934; People v Bracey, 41
NY2d 296; People v Drees, 53 AD2d 735; People v Agron, 10
NY2d 130; People v Schmidt, 168 NY 568; People v Robinson,
36 NY2d 224; United States y Larsen, 525 F2d 444, 423 US
1075.) II. The trial court properly exercised its discretion in
excusing six veniremen. (Witherspoon v Illinois, 391 US 510;
People v Boulware, 29 NY2d 135; United States v Hall, 536
F2d 313; People v Culhane, 33 NY2d 90; People v Biondo, 41
NY2d 483; United States y Gay, 522 F2d 429.) III. The death
penalty provisions pursuant to which appellant was sentenced
and as applied to him are constitutionally unassailable. (Peo-
B7
PEOPLE v DAVIS [43 NY2d 17] 23
Opinion per Cuooxe, J.
ple v Broadie, 37 NY2d 100, 423 US 950; Gregg v Georgia, 428
US 153; Furman v Georgia, 408 US 238; Woodson v North
Carolina, 428 US 280; Roberts v Louisiana, 428 US 325;
People v Kaiser, 21 NY2d 86; People v Barber, 289 NY 378.)
Louis J. Lefkowitz, Attorney-General (Jules E. Orenstein
and Samuel A. Hirshowitz of counsel), in his statutory capac-
ity under section 71 of the Executive Law in the second above-
entitled action. New York’s death penalty is constitutional.
(People v Patterson, 39 NY2d 288; Furman v Georgia, 408 US
238; Gregg v Georgia, 428 US 153; Proffitt v Florida, 428 US
242; Jurek v Texas, 428 US 262; Woodson v North Carolina,
428 US 280; Roberts v Louisiana, 428 US 325; People v Kaiser,
21 NY2d 86; Berger v New York, 388 US 41; People v Epton,
19 NY2d 496, 390 US 29.)
Sara Halbert and Bruce J. Ennis for New York Civil Liber-
ties Union, amicus curiae, in the second above-entitled action.
I. Section 60.06 of the Penal Law violates the Eighth Amend-
ment to the United States Constitution. (Roberts v Louisiana,
428 US 325; Woodson v North Carolina, 428 US 280; Williams
v Oklahoma, 428 US 907.) II. Section 60.06 of the Penal Law
violates section 5 of article I of the New York State Constitu-
tion. (Trop v Dulles, 356 US 86; Weems v United States, 217
US 349; Furman v Georgia, 408 US 238; McGinnis v oe,
410 US 263; Tigner v Texas, 310 US 141.)
OPINION OF THE COURT
Cooke, J.
_ In the setting of these two appeals, in each of which
defendant has been sentenced to death, we are called upon to
determine the constitutionality of New York’s death penalty
statute—a legal issue—not to express our views as to whether
such a statute, granted that it is constitutional, is wise or
advisable—a legislative concern.
I
Defendant Joseph Davis appeals directly from a judgment of
the Supreme Court, Westchester County, convicting him, after
a jury trial, of murder in the first degree, two counts of
robbery in the first degree, two counts of robbery in the
second degree and criminal possession of a weapon in the
second degree, and sentencing him to death for the crime of
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24 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooxe, J.
murder in the first degree and to various indeterminate terms
for the other crimes.
At about 10:30 p.a. on September 17, 1974, Officer Harold
Woods of the Yonkers Police Department was in plain clothes
and on his way to report for duty when he Stopped at an A &
the market, one of two men who were in the process of
robbing the place stopped him. When Woods identified himself
Preparing the night’s deposit and then ordered them to put
money into a canvas bag which he carried. While placing
money in the sack, Favia heard a shot at the front of the store
and a voice saying “Come on, man, we have to get out of
here.” Kevin Wynne, the boyfriend of Mary Cahill, related
that another man, whom he identified as defendant, stood by
the door; that, when a customer attempted to leave, defendant
pushed him back; and that, when the customer proceeded
forward again, inquired what was going on and said he was a
cop, defendant took out a gun and shot him. Mary Cahill
swore that, after she and Favia had placed over $5,000 into
the bag, she heard a man near the front doors say "Oh, you're
a cop”, followed by an expletive and then a shot. Charlie Cola,
a produce clerk, testified he saw defendant push a man in the
front entrance area and say “Get back in there”, that defend-
ant pushed the man again Saying “Get back into the store”,
that the man said “What are you doing? I’m a cop” and that
defendant then shot him. Ann Ringler, a checker, heard a
“pop” by the door, looked over and saw a man fall to the floor
bleeding with defendant Standing over him. Melvin Jones, an
FBI informer, took the stand and stated that on September 18,
1974 he was at a bar in Manhattan when defendant and “Bo”
Perkins appeared, that they told him they did something and
had just “wasted” a guy up in Yonkers or Mount Vernon, that
they both had .38 revolvers and money, that defendant gave
him a $50 bill and also gave money to Lu, the owner of the
bar who was defendant’s girl friend.
Defendant testified in his own behalf. He recalled that he
flew to New Orleans on a Delta Airlines flight on September 6,
1974, that the plane arrived there in the evening and was met
by defendant's first cousin, Arthur Johnson. He stated that at
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PEOPLE v DAVIS [43 NY2d 17] 25
Opinion per Cooxr, J.
no time did he leave the New Orleans or Napoleonville areas
of Louisiana during the period ensuing from his arrival until
his arrest on September 28, 1974 and that while at New
Orleans he worked with Mitchell Romar as an auto mechanic.
‘He denied being in the City of Yonkers on September 17, that
he had killed a police officer on that day and that he had met
Jones during the interval in question. Arthur Johnson and his
wife testified as to defendant’s living with them while in New
Orleans and specifically that he was in their home both on
September 17 and September 18 at the times mentioned.
Arthur Johnson told of defendant’s work with Romar. Romar
swore that on September 17 and 18 he had worked with
defendant. Lucia Thompson, the owner of the Manhattan bar,
testified that the last she saw defendant prior to trial was on
September 6, 1974 when he enplaned to New Orleans, that
she did not see him on September 17 or 18 and that he did not
give her any money from September 6, 1974 through the
remainder of that month.
On rebuttal, Danny Mese testified that on September 17 he
saw a tow truck operated by a man named Mitchell and that
he did not see anyone with him. A Delta Airlines stewardess
testified she saw defendant on a flight from New Orleans to
New York on September 11, 17 or 23.
[1] Defendant contends that it was error for the court not to
admit into evidence, unconditionally on his offer, a photo-
graph identified as People’s Exhibit 35. Utilizing a device
creating a photo montage incorporating certain features of a
suspect which is then projected upon a screen, Wynne assisted
in the construction of two images resembling the two men
involved in the A & P robbery—"[flirst * * * the robber” and
“then the shooter”. Photographs were then taken of each
projection in the same order. When asked what Exhibit 35
was, Wynne responded: “It’s supposed to be the picture of the
man that shot the police officer.” He stated that the exhibit
was not a photographic reproduction of the picture that was
on the screen, differing in that “like the face blew up. The
cheeks were larger. Like the eyebrows became lighter. As you
can see, there was like a glare on the screen from the picture,
and that’s pretty much what happened. Like it just blew up
the face entirely.” The witness identified Exhibit 36 as “sup-
posed to be the photograph of the robber” and said that both
photos were distorted from the pictures he had seen on the
screen, that “[t]hese are not the guys I picked” and that
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26 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooxe, J.
“these are the photographs they handed me as being the
robber here and the shooter here, and I disagreed * * *
(blecause of the facial features, that they’re wrong.” Although
the trial court ruled that it would not admit one photograph
without the other, under the circumstances evinced in
Wynne’s testimony, it cannot be said that the rejection of
Exhibit 35 was error (see Alberti v New York, Erie & Western
R. R. Co., 118 NY 77; Nies v Broadhead, 75 Hun 255, 256;
Catanese v Quinn, 29 AD2d 675; McCormick, Evidence [2d ed],
§ 214; Richardson, Evidence [Prince—1l0th ed], § 137; Fisch,
New York Evidence [2d ed], § 142, p 82).
[2, 3] The name and address of Oliver Smith was listed in
the People’s alibi notice of rebuttal. The People did not call
Smith but the defendant did call him as a surrebuttal witness,
whereupon he testified that he gave to the Yonkers police a
signed statement dealing with the case and that he “had made
[the] statement under duress.” At that point, an objection was .
made and sustained. In discussing the ruling, defense counsel
stated, relating a conversation he had with Smith, that Smith
had been taken to a precinct in New York City where he was
interrogated, that a day or two later he was picked up by New
York City police in the company of a Yonkers detective or two
and taken to a second New York City precinct for questioning,
that at this juncture he told “them” he was on parole and
“they” said “Well, look, Smith, just by being in this headquar-
ters you are in violation of parole”, that they prodded him as
to when he last saw Davis, that at a fourth interview in
Yonkers Smith said “Look, fellows, you write down anything
you want about what I know, and I will sign it”, and that, as
counsel understood it, the statement says he saw Davis in
New York during the middle of September, 1974. While a
party’s attempt to procure false testimony or to corrupt a
_ witness, though collateral to the issues, is competent as an
admission by acts and conduct that the party’s case is weak
and its evidence dishonest (Nowack v Metropolitan St. Ry. Co.,
166 NY 433, 437) and while the fact that evidence was
fabricated is admissible even though the evidence itself was
not used (see 1 Wharton’s Criminal Evidence [13th ed], § 218),
there is no indication, much less proof, of falsification on the
part of the police or misconduct such as bribery of a witness
nor any “fastening” of such wrongdoing to the prosecution
(see McCormick, Evidence [2d ed], § 273, p 660). Here, the
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PEOPLE v DAVIS [43 NY2d 17] 27
Opinion per Cooke, J.
statement signed by Smith was not offered or received in
evidence.
[4, 5, 6] Relevant evidence has been defined as evidence
having any tendency in reason to prove any material fact
(Uniform Rules of Evidence, rule 1, subd [2]). It tends to
convince that the fact sought to be established is so (People v
Yazum, 13 NY2d 302, 304). Relevance, however, is not always
enough, since “even if the evidence is proximately relevant, it
may be rejected if its probative value is outweighed by the
danger that its admission would prolong the trial to an
unreasonable extent without any corresponding advantage; or
would confuse the main issue and mislead the jury; or un-
fairly surprise a party; or create substantial danger of undue
prejudice to one of ihe parties” (Richardson, Evidence [Prince
—10th ed], § 147, p 117; see, also, People v Harris, 209 NY 70,
82; McCormick, Evidence [2d ed], § 185, pp 438-440). Since the
attempt to introduce Smith’s testimony on a collateral issue
was for the obvious purpose of creating the impression that a
substantial portion of the prosecution’s proof was tainted in a
fashion similar to the proffered Smith account, the probative
value of the testimony could be outweighed by dangers that
the main issue would be obscured, by prolongation of trial and
by the solid possibility of undue prejudice to the prosecution.
Therefore, the discretion of the trial court was not abused (see
Radosh v Shipstad, 20 NY2d 504, 508; Fisch, New York
Evidence [2d ed], § 3, p 5).
[7] There is no merit to defendant’s assertion of error
because of the denial of a new trial. The newly discovered
evidence which formed the basis of the motion consisted of a
copy of an airline schedule, purportedly to prove that defend-
ant could not have returned by air to New Orleans from the
New York area after the commission of the crime on Septem-
ber 17, so as to have been seen by the Johnsons in New
Orleans early on the morning of September 18. Such proof
would be relevant only if one accepted the alibi testimony of
defendant, his relatives and friends, which proof was not
accepted by the jury. It is conceded in appellant’s brief that
defense counsel was aware during trial of certain airline
schedules and that “very close to the end of the trial * * * a
local travel agent acquainted the defense with a publication
known as the Official Airline Guide published by Reuben
Donnelly in Chicago.” It is a portion of this Donnelly publica-
tion which defense seeks to introduce as new evidence, yet
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28 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooke, J.
significantly no application was made during trial for an
adjournment to secure it. In any event, the evidence was not
“of such character as to create a probability that had such
evidence been received at the trial the verdict would have
been more favorable to the defendant” (CPL 330.30, subd 3).
Il
The second appeal involves a judgment of the Supreme
Court, Kings County, convicting Joseph James of murder, first
degree; murder, second degree; attempted murder, second
degree; assault, first degree; criminal possession of a weapon,
second degree; and escape, second degree; and sentencing him
to death for murder in the first degree and to concurrent
prison terms for the other crimes. This, too, is a direct appeal.
There was proof that, on the morning of September 9, 1975,
James, in the custody of Officers Connor and Motchan of the
New York City Department of Corrections, was escorted to the
dental clinic at the Kings County Hospital for examination.
At that time defendant was incarcerated awaiting trial on an
unrelated murder charge. While waiting for X rays to be
taken defendant, cuffed to Motchan, asked to go to the lava-
tory. Motchan, unarmed, went into a bathroom with defend-
ant and removed a chain from defendant’s wrist. Connor, who
was armed, remained outside. Defendant seized a pistol, which
had been secreted at his request in the bathroom earlier in
the day by his girl friend, and confronted Officer Motchan
with the weapon. Motchan opened the door and warned his
colleague that defendant had a gun, whereupon defendant
shot and killed Motchan. Defendant then fired at and hit
Connor twice, shot a patient-bystander and escaped from the
hospital. Defendant did not take the stand.
Defendant’s brief and reply brief in this court contain points
‘to the effect that the trial court’s Sandoval rulings constituted
prejudicial error requiring a retrial and that said court vio-
lated the principles of Witherspoon v Illinois (391 US 510) in
dismissing six persons in the venire. After filing said briefs,
defendant’s appellate counsel, orally and in writing and with
defendant’s concurrence after a discussion with trial counsel,
has requested the court “not to consider, and treat as with-
drawn” these arguments for relief as well as any portion of
the point in said briefs to the effect defendant was not proven
guilty of murder in the first degree beyond a reasonable doubt,
which could be construed as arguments for a new trial. While
B13
PEOPLE v DAVIS [43 NY2d 17} 29
Opinion per Cooke, J.
these grounds, as to which there has been such a request and
withdrawal and for which a reason has been ascribed, are
deemed without merit, in the context of our adversary system
there is no reason to interfere with this appellate strategy
involving a conscious choice not to raise certain issues (see
People v De Renzzio, 19 NY2d 45, 50-51; Ennis v Le Fevre, 560
F2d 1072; cf. People v DiPiazza, 24 NY2d 342, 352; People v
Castro, 19 NY2d 14. 17-18).
Ill
[8] We all agree that as to defendant Davis, while the facts
support a conviction of the crime of murder in the second
degree, there has not been proof of guilt beyond a reasonable
doubt as to all of the elements of the crime of murder in the
first degree. After careful review, there continues to be doubt
among us concerning whether the victim, Officer Woods, was
acting in the line of duty when he was killed, which is one of
the elements of murder in the first degree as specified by our
Legislature (Penal Law, § 125.27, subd 1). Accordingly, as to
defendant Davis we conclude on nonconstitutional grounds
that his guilt of murder in the first degree has not been
established, and thus do not reach the constitutional issue as
to him. ;
IV
'9] On the other hand, as to defendant James we conclude
that there has been proof beyond a reasonable doubt of his
guilt of murder in the first degree, for which he has been
sentenced to death, and thus now consider his contention that
the statutory death penalty provisions under which he was
sentenced are unconstitutional. Section 60.06 of the Penal
Law, pursuant to which these sentences were imposed pro-
vides that “[w]hen a person is convicted of murder in the first
degree as defined in section 125.27, the court shall sentence
the defendant to death.” Thus, when read with section 125.27,'
New York has enacted a death penalty statute which posi-
tively provides for a mandatory death sentence for all persons
over 18 years of age found to have intentionally caused the
death (1) of a police officer in the line of duty where defendant
1. Section 125.27 of the Penal Law, entitled “Murder in the first degree”, added by
section 5 of chapter 367 of the Laws of 1974 and effective September 1, 1974 (see
Appendix).
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30 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooke, J.
knew or had reason to know the victim was such an officer, or
(2) of a:. employee of a State correctional institution or local
correctional facility under such circumstances (as specified in
[1}), or (3) of anyone if defendant was confined or in custody
for a life term or upon an indeterminate sentence with a
maximum of life and a minimum of at least 15 years or if
defendant had escaped from such confinement or custody and
had not yet been returned.
{10, 11] We approach our consideration of this issue with
full recognition that the State statutes under scrutiny carry
‘with them a strong presumption of constitutionality, that they
will be stricken as unconstitutional only as a last resort and
that courts may not substitute their ‘udgment for that of the
Legislature as to the wisdom and expediency of the legislation.
As stated by Justice BLACKMUN in his dissent in Furman v
Georgia (408 US 238, 411): “We should not allow our personal
preferences as to the wisdom of legislative * * * action, or our
distaste for such action, to guide our judicial decision in cases
such as these. The temptations to cross that policy line are
very great”. At the same time, it must be kept firmly in mind
that this court, as other State courts, is bound by rulings of
the United States Supreme Court as to the validity of State
statutes under the United States Constitution (Magnolia Pe-
troleum Co. v Hunt, 320 US 430, 438; Bourjois Sales Corp. v
Dorfman, 273 NY 167, 171).
The Eighth Amendment to the United States Constitution
provides that “cruel and unusual punishments [shall not be]
inflicted”, and the Fourteenth Amendment by its due process
clause prohibits the infliction of such punishment by a State
(Francis v Resweber, 329 US 459, 463). In People v Fitzpatrick
(32 NY2d 499, 512-513), in considering former death penalty
statutes in this State (Penal Law, former §$§ 125.30, 125.35),
this court stated that “[s]ince * * * the New York statute
* ** challenged * * * leaves infliction of the death penalty
solely to the discretion of the jury, we conclude, in light of the
Supreme Court’s reading of the Eighth Amendment in Fur-
man [v Georgia] (408 U.S. 238, supra), that we have no
alternative but to hold that that penalty constitutes cruel and
unusual punishment within the sense of that provision”. Since
that decision, New York has enacted section 125.27 of the
Penal Law (L 1974, ch 367, §5) which specifies the instances
when murder in the first degree is committed and which
incorporates two affirmative defenses applicable to those in-
B15
PEOPLE v DAVIS [43 NY2d 17] 31
Opinion per Cooxe, J.
stances—that “defendant acted under the influence of extreme
emotional disturbance for which there was a reasonable expla-
nation or excuse” and that “defendant’s conduct consisted of
causing or aiding, without the use of duress or deception,
another person to commit suicide.”
Since the enactment of section 125.27, the Supreme Court
has issued several opinions concerning State statutes revised
in an effort to conform to Furman v Georgia. In Gregg v
Georgia (428 US 153), the plurality opinion of the court
summarized, at page 195, that “the concerns expressed in
Furman that the penalty of death not be imposed in an
arbitrary or capricious manner can be met by a carefully
drafted statute that ensures that the sentencing authority is
given adequate information and guidance. As a general propo-
sition these concerns are best met by a system that provides
for a bifurcated proceeding at which the sentencing authority
is apprised of the information relevant to the imposition of
sentence and provided with standards to guide its use of the
information”. (Emphasis added.) In Woodson v North Carolina
(428 US 280, 304), it was held that “the fundamental respect
for humanity underlying the Eighth Amendment * * * re-
quires consideration of the character and record of the individ-
ual offender and the circumstances of the particular offense as
a constitutionally indispensable part of the process of inflict-
ing the penalty of death”. In Roberts (Stanislaus) v Louisiana
(428 US 325), it was made clear that this principle applies
even where the crime of first degree murder is narrowly
defined. There it was stated at pege 332: “That Louisiana has
adopted a different and somewhat narrower definition of first-
degree murder than North Carolina is not of controlling
constitutional significance. The history of mandatory death
penalty statutes indicates a firm societal view that limiting
the scope of capital murder is an inadequate response to the
harshness and inflexibility of a mandatory death sentence
statute.” This analysis is not based simply on the Supreme
Court’s conclusion that mandatory death sentences are unduly
harsh insofar as they fail to take into account mitigating
circumstances; it is also based on the historical fact that “[a]t
least since the Revolution, American jurors have, with some
regularity, disregarded their oaths and refused to convict
defendants where a death sentence was the automatic conse-
quence of a guilty verdict” (Woodson v North Carolina, 428
US 280, 293, supra).
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32 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooxz, J.
[12] Based on these Statements, since New York’s statute
provides neither for the furnishing of information, without
which there cannot be consideration of the individual offender
and the circumstances of a particular offense, nor standards to
guide the sentencing authority in the use of that information
had it been furnished, unconstitutionality is certainly indi-
cated. Indeed, since the statute requires by its terms a manda-
tory death penalty for the enumerated crimes, it is indistin-
guishable from those death penalty statutes found unconstitu-
tional in Woodson v North Carolina (428 US 280, supra) and
Roberts (Stanislaus) v Louisiana (428 US 325, supra). (See
People v Velez, 88 Misc. 2d 378 (McQuiLLan, J.].)
Any doubt concerning the question of constitutionality,
however, has now been removed and has been firmly resolved
by the Supreme Court in Roberts (Harry) v Louisiana (431 US
—, 97 S Ct 1993). It is decisive. There, Harry Roberts was
indicted and convicted of first degree murder of a police
officer, engaged at the time of his death in the performance of
his duties, and, as required by Louisiana statute (La Rev Stat
Ann, § 14:30), was sentenced to death. There, in view of prior
holdings (see 431 US —, 1 7), a majority of the Supreme
Court, with clarity and direction and without obfuscation,
stated (p —, 97 S Ct 1995-1996):
“To be sure, the fact that the murder victim was a peace
officer performing his regular duties may be regarded as an
aggravating circumstance. There is a special interest in afford-
ing protection to these public servants who regularly must
risk their lives in order to guard the safety of other persons
and property. But it is incorrect to suppose that no mitigating
circumstances can exist when the victim is a police officer.
Circumstances such as the youth of the offender, the absence
of any prior conviction, the influence of drugs, alcohol or
extreme emotional disturbance, and even the existence of
circumstances which the offender reasonably believed pro-
vided a moral justification for his conduct are all examples of
mitigating facts which might attend the killing of a peace
officer and which are considered relevant in other jurisdic-
tions.
“As we emphasized repeatedly in Roberts and its companion
cases decided last Term, it is essential that the capital sen-
tencing decision allow for consideration of whatever mitigat-
ing circumstances may be relevant to either the Particular
offender or the particular offense. Because the Louisiana
B17
PEOPLE v DAVIS [43 NY2d 17] 33
Opinion per Cooke, J.
statute does not allow consideration of particularized mitigat-
ing factors, it is unconstitutional”. (Emphasis added.)
[13] So, too, plainly and simply and without verbiage, be-
cause the New York statute “does not allow consideration of
particularized mitigating factors” for purposes of “the capital
sentencing decision” as to “the particular offender”, it is
unconstitutional.
[14] That the statutory framework may in some manner
reflect various mitigating factors as defenses is not enough to
save New York’s death penalty statute from constitutional
infirmity. Similar defenses are found in other jurisdictions,
including those whose death penalty statute has been held
unconstitutional by the Supreme Court. For example, Louisi-
ana has many of the same defenses found in the New York
statutes: (1) “sudden passion or heat of blood” in given circum-
stances may reduce a homicide to manslaughter (La Rev Stat
Ann, § 14:31, subd [1)); (2) justification is a defense to prosecu-
tion for a crime (§ 14:18); (3) incapacity to distinguish between
right and wrong because of mental disease or defect is a
defense (§ 14:14), and intoxication may preclude specific crimi-
nal intent (§ 14:15). Similar to New York’s defense of duress
(Penal Law, §40.00) is Louisiana’s justification defense of
compulsion, but such is not a defense to murder in that
jurisdiction (see La Rev Stat Ann, § 14:18, subd [6]). In addi-
tion, Louisiana has a defense of infancy (§ 14:13), as does New
York (Penal Law, § 30.00), but its statute does not set forth a
specific age limitation in the case of capital crimes. In this
respect, however, under the recent decisions of the S:preme
Court the exclusion of an entire category of offenders under 18
years of age by New York (Penal Law, § 125.27, subd 1, par
{b}) from punishment by death is not a mitigating factor since
such limitations. do not afford individualized consideration of
the offender (Rockwell v Superior Ct. of Ventura County, 18
Cal 3d 420, 438). Aside from the fact that Louisiana’s law
includes many of the same defenses, examination of the
statutory defenses reveals their inadequacy as a solution to
the constitutional deficiencies of New York’s death penalty
statute.’
The problem lies partly in the distinction between a defense
as that term is used in criminology and mitigating factors as
2. We are advised that this argument—that New York’s defenses reflect mitigating
factors—was presented to the Supreme Court (see brief of the Attorney-General of
St .cte of New York as amicus curiae in Roberts [Harry] v Louisiana, supra).
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34 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooxg, J.
described by the Supreme Court. The answer does not turn on
whether mitigating factors may be considered at the guilt
portion of the trial or whether such factors may be elevated to
defenses. The problem is of greater magnitude than mere
procedure or form. In a statutory framework where there is
no distinct consideration of mitigating factors, there is an
inherent fallacy in the notion that defenses provide the same
function or are as good as or even better than separate
consideration of such mitigating factors. The fundamental
error in the reasoning is that defenses relate to guilt or
innocence whereas a mitigating factor may be of no signifi-
cance to a determination of criminal culpability. This was
recognized in Gregg v Georgia (428 JJS 153, 190, supra), when
it was noted that “[m]uch of the igformation that is relevant
to the sentencing decision may "have no relevance to the
question of guilt, or may even be extremely prejudicial to a
fair determination of that question.” The point is that what is
urged in mitigation will often not rise to the level of a
defense. For example, in considering the third question of the
Texas statute, which asks whether the conduct of the defend-
ant was unreasonable in response to any provocation by the
deceased, it was remarked: “This might be construed to allow
the jury to consider circumstances which, though not sufficient
as a defense to the crime itself, might nevertheless have
enough mitigating force to avoid the death penalty—a claim,
for example, that a woman who hired an assassin to kill her
husband was driven to it by his continued cruelty to her”
(Jurek v Texas, 428 US 262, 272, n 7). In short, statutory
defenses alone do not take the place of a distinct consideration
of mitigating factors, and this is all the more so where those
defenses do not include a significant portion of what first the
plurality and now the majority of the Supreme Court has
emphasized should be examined—the character and record of
the defendant.
The plurality of the Supreme Court was careful to state that
it was not suggesting that a finding of constitutionality was
dependent on following exactly the procedures used in those
statutes upheld by it, instead explaining that “each distinct
system must be examined on an individual basis” (Gregg v
Georgia, 428 US 153, 195, supra). But, except in circumstances
not relevant here,’ the common thread running through the
3. The Supreme Court has reserved the question of whether or in what circum-
stances mandatory death sentence statutes may be constitutionally applied to prison-
; (n. contd.)
B19
PEOPLE v DAVIS [43 NY2d 17] 35
Opinion per Cooxe, J.
court’s analysis of statutes of other jurisdictions is that there
should be a consideration of the “relevant facets of the charac-
ter and record of the individual offender” (Woodson v North
Carolina, 428 US 280, 304, supra) or, “the attributes of the
individual offender” (Roberts [Stanislaus] v Louisiana, 428 US
325, 334, supra). This requirement was derived from the
observation that traditionally a determination of what is an
appropriate sentence requires an investigation of the “charac-
ter and propensities of the offender” (Gregg v Georgia, 428 US
153, 189, supra, quoting from Pennsylvania ex rel. Sullivan v
Ashe, 302 US 51, 55). Therefore, it was reasoned that the
“futility of attempting to solve the problems of mandatory
death penalty statutes by narrowing the scope of the capital
offense stems from our society’s rejection of the belief that
‘every offense in a like legal category calls for an identical
punishment without regard to the past life and habits of a
particular offender’” (Roberts [Stanislaus] v Louisiana, 428
US 325, 333, supra, quoting from Williams v New York, 337
US 241, 247).
[15] Of telling significance, the New York defenses do not
take into account the character, propensity, record or attrib-
utes of the individual offender. This omission results from the
simple fact that an unblemished record and evidence of prior
good character has never been considered as a defense, and
probably never will be. Of course, one may infer character
from conduct, but the Supreme Court has indicated that a
more individualized consideration is necessary. Hence, while
there may be some visual or empirical satisfaction derived
from counting and generally comparing the New York de-
fenses with the mitigating factors indorsed by the Supreme
Court, the fact is that these defenses do not require considera-
tion of the character and record of the individual in respect to
his sentence or punishment as mandated by the Supreme
Court (see, e.g., Roberts [Harry] v Louisiana, supra).
This individualized consideration, with proper guidance and
standards, is the crucial aspect of the sentencing decision.
“What is essential is that the jury have before it all possible
relevant information about the individual defendant whose
fate it must determine” (Jurek v Texas, 428 US 262, 276,
supra). New York’s defenses simply do not present the re-
ers serving life sentences (Roberts [Harry] v Louisiana, 431 US —, n 5, supra). Hence,
we do not pass on the constitutionality of section 125.27 (subd 1, par [a], cl (iii) of the
Penal Law.
B20
36 43 NEW YORK REPORTS, 2d SERIES
Opinion per Cooxg, J.
quired information and, if the defenses are not established,
the defendant must be sentenced to death. New York’s law
does not permit a jury which has rejected these defenses and
has found a defendant guilty of murder in the first degree to
then mitigate the punishment by resurrecting the defenses.
Indeed, this is implicit in our justification defense statute
which states that “[t]he necessity and justifiability of * * *
conduct may not rest upon considerations pertaining only to
the morality and advisability of [a] statute” (Penal Law,
§ 35.05, subd 2; see Hechtman, Practice Commentaries, Mc-
Kinney’s Cons Laws of NY, Book 39, Penal Law, § 35.05, p 83).
Accordingly, the argument urging constitutionality fails for
two reasons: initially, because the statutory framework does
not permit the consideration uf legally insufficient defenses as
mitigating factors, and, more importantly, because these de-
fenses do not present sufficient information about the charac-
ter and record of the individual to allow a constitutionally
permissible sentencing decision. Properly viewed, it is thus
apparent that our statute is a mandatory capital punishment
statute of the same type as has been struck down by the
Supreme Court.‘
V
[16] Under the Constitution of our State, in capital cases in
which the sentence of death has been imposed, this court is
vested with the power to and must review the facts (NY
Const, art VI, §§ 3, 5; People v Carbonaro, 21 NY2d 271, 274).
The scope of our inquiry into the facts in capital cases was
defined in People v Crum (272 NY 348, 350): “A review of the
facts means that we shall examine the evidence to determine
whether in our judgment it has been sufficient to make out a
case of murder beyond a reasonable doubt. We are obliged to
weigh the evidence and form a conclusion as to the facts. It is
not sufficient, as in most of the cases with us, to find evidence
which presents a question of fact; it is necessary to go further
before we can affirm a conviction and find that the evidence is
of such weight and credibility as to convince us that the jury
was justified in finding the defendant guilty beyond a reasona-
ble doubt.” :
4. Inasmuch as we have declared our death penalty statute unconstitutional under
the United States Constitution and the decisions of the United States Supreme Court,
we need not pass upon its constitutionality under the State Constitution.
B21
PEOPLE v DAVIS [43 NY2d 17] 37
Opinion per Cooxe, J.
[17] In summary, under the United States Constitution, the
death penalty is not per se unconstitutional, but New York’s
statute, as presently written, in the absence of any provision
in it for consideration of relevant and particularized mitigat-
ing factors, despite its narrow categories and various statutory
defenses, is unconstitutional under recent holdings of the
United States Supreme Court. Since we have determined
under the decisions of the United States Supreme Court, the
ultimate arbiter on the question, that the sentence of death as
imposed on defendant James was invalid as a matter of law,
that part of the judgment of conviction must be modified (CPL
470.15, subd 4, par [c]). In addition, as noted, as to defendant
Davis we have determined on noneonstitutional grounds that
his guilt of murder in the first degree has not been established
beyond a reasonable doubt. However, based on our review of
the records, as to the respective indictment counts charging
murder in the first degree, we determine that in each case
there has been a showing beyond a reasonable doubt of
defendant’s guilt of murder in the second degree in violation
of subdivision 1 of section 125.25 of the Penal Law, and hence
there should be a resentencing of each defendant.
As to appellant Davis, the judgment should be modified by
vacating the sentence of death and the case remitted to
Supreme Court, Westchester County, for resentencing and, as
so modified, the judgment should be affirmed.
As to appellant James, the judgment should be modified by
vacating the sentence of death and the case remitted to
Supreme Court, Kings County, for resentencing, and, as so
modified, the judgment should be affirmed.
APPENDIX
“A person is guilty of murder in the first degree when:
“1. With intent to cause the death of another person, he
causes the death of such person; and
“(a) Either:
(i) the victim was a police officer as defined i in subdivi-
sion 34 of section 1.20 of the criminal procedure law
who was killed in the course of performing his official
duties, and the defendant knew or reasonably should
have known that the victim was a police officer; or
(ii) the victim was an employee of a state correctional
institution or was an employee of a local correctional
B22
38 43 NEW YORK REPORTS, 2d SERIES
Dissenting Opinion per Chief Judge Brerrer
facility as defined in subdivision two of section forty of
the correction law, who was killed in the course of ©
performing his official duties, and the defendant knew
or reasonably should have known that the victim was
an employee of a state correctional institution or a local
correctional facility; or
“(iii) at the time of the commission of the crime, the
defendant was confined in a state correctional institu-
tion, or was otherwise in custody upon a sentence for
the term of his natural life, or upon a sentence com-
muted to one of natural life, or upon a sentence for an
indeterminate term the minimum of which was at least
fifteen years and the maximum of which was natural
life, or at the time of the commission of the crime, the
defendant had escaped from such confinement or cus-
tody and had not yet been returned to such confinement
or custody; and
“(b) The defendant was more than eighteen years old at
the time of the commission of the crime.
“2. In any prosecution under subdivision one it is an affir-
mative defense that:
“(a) The defendant acted under the influence of extreme
emotional disturbance for which there was a reasonable
explanation or excuse, the reasonableness of which is to
be .etermined from the viewpoint of a person in the
defendant’s situation under the circumstances as the de-
fendant believed them to be. Nothing contained in this
paragraph shall constitute a defense to a prosecution for,
or preclude a conviction of, manslaughter in the first
degree or any other crime except murder in the second
degree; or
“(b) The defendant’s conduct consisted of causing or aid-
ing, without the use of duress or deception, another
person to commit suicide. Nothing contained in this para-
graph shall constitute a defense to a prosecution for, or
preclude a conviction of, manslaughter in the second
degree or any other crime except murder in the second
degree.
“Murder in the first degree is a class A-1 felony.”
Chief Judge Breirex (dissenting in part). I would modify in
the Davis case to reduce the conviction to murder in the
second degree on the ground that defendant’s guilt of murder
B23
PEOPLE v DAVIS [43 NY2d 17] 39
Dissenting Opinion per Chief Judge Breitet
in the first degree has not been established in law and in fact
beyond a reasonable doubt. Consequently, it is not, in the
Davis case, necessary or appropriate to reach any constitu-
tional issue concerning New York’s capital punishment stat-
ute. I would affirm in the James case on the ground that his
guilt of murder in the first degree has been established beyond
a reasonable doubt and that the New York statute appears to
meet the latest tests for validity laid down by the United
States Supreme Court.
The constitutional issue before the court is, as the majority
opinion observes, not to be determined by the philosophical or
penological predilections of the court or its individual mem-
bers on the appropriateness of capital punishment as a sanc-
tion in a civilized society. Instead, the issue is whether Fed-
eral constitutional limitations allow the Legislature as the
lawmaking representatives of the people to determine the
values and judgments to be attached to the several factors
influencing the choice of capital punishment as a sanction.*
Davis and James, defendants in unrelated criminal cases,
each convicted of first degree murder and sentenced to death,
appeal directly to this court (NY Const, art VI, § 3, subd b;
CPL 450.70). One intentionally killed a police officer. The
other intentionally killed a correction officer.
There are two issues. The first, given *his court’s power to
review the facts in a capital case, is whether, in each case, the
evidence justifies the jury’s verdict (NY Const, art VI, §3,
* Speaking for myself alone among the dissenters I find capital punishment repul-
sive, unproven to be an effective deterrent (of which the James case itself is illustra-
tive), unworthy of a civilized society (except perhaps for deserters in time of war)
because of the occasion of mistakes and changes in social values as to what are
mitigating circumstances, and the brutalizing of all those who participate directly or
indirectly in its infliction. This has been a lifelong view buttressed by over 40 years of
experience as prosecutor, counsel to the Governor entailing 81 applications for
commutation of capital sentences, Judge, member of the “National Crime Commis-
sion”, witness before the British Royal Commission on Capital Punishment, and ~
member of the American Law Institute and its Advisory Committee on the Model
Penal Code. In all of these roles, when appropriate, I actively resisted viewing capital
punishment as a proper or useful sanction for civilian crime. (With respect to the
‘dubiousness of capital punishment as a deterrent, see Royal Commission on Capital
Punishment, 1949 1953 Report, pp 18, 328-380; Sellin, The Death Penalty [1959], pp
19-63; President’s Commission on Law Enforcement and Administration of Justice,
Challenge of Crime in a Free Society, p 143; Model Penal Code, § 201.6, Comment
(Tent Draft No. 9, 1959]; Temporary Commission on Revision of Penal Law and
Criminal! Code, Special Report on Capital Punishment [1965], pp 86-94, in NY Legis
Doc, 1965, No. 25; Forest, Deterrent Effect of Capital Punishment: A Cross-State
Analysis of the 1960's, 61 Minn L Rev 743).
B24
40 43 NEW YORK REPORTS, 2d SERIES
Dissenting Opinion per Chief Judge Brerrev
subd a; CPL 470.30, subd 1). The second is whether section
60.06 of the Penal Law, providing capital punishment for first
degree murder, an offense defined in narrow terms (Penal
Law, § 125.27), violates Federal constitutional proscriptions of
cruel and unusual punishment (US Const, 8th Amdt; see, also,
NY Const, art I, § 5).
The evidence in the Davis case failed to establish beyond a
reasonable doubt that the police officer killed was acting in
the line of duty at the time he was shot. Hence, the crime of
first degree murder was not made out and there should be a
modification.
The judgment against defendant James should be affirmed.
In his case, every element of first degree murder was estab-
lished beyond a reasonable doubt. Because the New York
statute defining first degree murder is so narrowly drawn, and
because the statutory scheme takes into consideration possible
mitigating factors by making them defenses to the substantive
- crime, it does not run afoul of constitutional limitations.
On September 17, 1974, Davis participated in an armed
robbery of a supermarket. While his collaborator filled a
canvas bag with money in excess of $5,000, Davis stood watch,
relatively inconspicuously, just inside the exit door. Police
Officer Woods, not in uniform, but about to report for work,
had just paid for his purchases, apparently unaware of the
ongoing robbery. As Woods attempted to leave the store, he
was shoved by Davis and ordered to “get back in the store.”
Recovering and starting out for a second time, he was again
repulsed. Angrily, according to one witness, he exclaimed,
“What are you doing. I’m a cop.” Davis responded with a
statement, “You’re a cop, huh”, and a bullet, which felled
Officer Woods. This exchange was corroborated by other wit-
nesses. Davis and his cohort emptied another cash register,
ordered everyone to the back, and left. Officer Woods, having
suffered a severed spinal cord, died five days later of bronchop-
neumonia.
At trial, the proof of Davis’ guilt was overwhelming. Six
witnesses placed him at the scene; four of these witnessed the
killing and identified Davis as the killer. In addition, an FBI
informer testified to admissions made to him by defendant.
The defense sought to place Davis in New Orleans at the time
of the shooting, but his alibi witnesses failed to contradict.
convincingly the strong evidence presented by the prosecution.
B25
PEOPLE v DAVIS [43 NY2d 17] 41
Dissenting Opinion per Chief Judge Brerrer
Thus, the evidence leads, inexorably, to the conclusion that
Davis intentionally killed Officer Woods.
There is no doubt whatever that appellant James is guilty
of the killing of Correction Officer Motchan. For almost two
months, James, jailed on a pending murder charge, with an
impending probability of a life sentence, discussed his escape
with a girl friend, Patricia Singleton, during daily telephone
conversations. Then on September 7, 1975, on defendant’s
request, the girl friend procured a gun. After receiving further
instructions from defendant on the morning of September 9,
Miss Singleton left the gun in the lavatory in the Kings
County Hospital Dental Clinic, where James had an appoint-
ment that day.
James was escorted to the clinic by two correction officers,
Motchan and Connor. When defendant asked to use the lava-
tory, Officer Motchan, unarmed, accompanied him, while Offi-
cer Connor waited outside the door. After some scuffling in the
lavatory, Officer Motchan emerged, without being able to close
the door behind him, warning Connor that appellant had a
gun. A shot from the lavatory hit Motchan in the back,
mortally wounding him, and James, in the ‘course of his
escape, also wounded Officer Connor and an innocent by-
stander in the now-panicked waiting area.
James contended that the undisputed shooting was an ‘“acci-
dent”, caused by Motchan’s stumbling as he left the lavatory.
But the testimony of eyewitnesses does not support this con-
tention, and defendant’s continued shooting at other bystand-
ers belies it. And if more be needed, there is defendant’s
desperate letter to a former girl friend, sent days before the
attempted escape: “Listen, Debbie, I am very serious about
what I am about to say. I am going to have an interview this
week. I’m getting out of here or die trying. And if I die trying,
you know me, that I am going to take someone with me”.
Although it is beyond reasonable doubt that each appellant
intentionally caused the death of his victim, in the Davis case,
a police officer, and in the James case, a correction officer,
that alone is not enough to establish a violation of section
125.27 of the Penal Law. The restricted scope of that section
requires that the officer be “killed in the course of performing
his official duties” (subd 1, par [a], cls [i], [ii]. As to this
element, there was a failure of proof in the Davis case. True,
decedent Woods announced “I’m a cop”, provoking Davis to
shoot him. But from those words alone, one may not draw
B26
42 43 NEW YORK REPORTS, 2d SERIES
Dissenting Opinion per Chief Judge Brerrer
beyond a reasonable doubt the inference that Woods was
acting in the line of duty. And there is no more. Woods might
have uttered the words expecting only to induce Davis into
moving aside and letting him continue on his way. Other
likely explanations exist. The point is not that these infer-
ences are any better than the one drawn by the prosecution;
the point is rather that there is not evidence beyond a
reasonable doubt to support any one inference more than
another arising out of Woods’ utterance. The result is that one
may only speculate about the decedent’s state of mind and his
intentions. Davis’ conviction must, therefore, be reduced to
one for murder in the second degree.
The James case, by contrast, falls squarely within the
proscription of the statute (Penal Law, § 125.27). What re-.
mains to be addressed is only the constitutional challenge to
the statute mandating a sentence of death (Penal Law,
§ 60.06).
Section 125.27 of the Penal Law, defining first degree mur-
der, is applicable only to three categories of intentional kill-
ing. The first two cover killings of police officers and correc-
tional employees in the course of performing their duties,
where defendant knew or reasonably should have known that
the victim was a police officer or correctional employee (subd
1, par [a], cls [i], [ii]). The third category applies to defendants
who were life prisoners or escaped life prisoners (cl [liii}).
There are, significantly, two ameliorative provisions in the
statute. First, a defendant may not be convicted of first degree
murder unless he is at least 18 years of age (subd 1, par [b)).
Second, it is a defense in a prosecution for first degree murder
that defendant acted under the influence of extreme emotional
disturbance (subd 2, par [a)).
It is now settled, for the nonce, at least, that capital punish-
ment, per se, does not violate Federal constitutional prohibi-
tions of crue] and unusual punishment (Gregg v Georgia, 428
US 153, 168-187; Proffitt v Florida, 428 US 242, 247; Jurek v
Texas, 428 US 262, 268). Although the Supreme Court has
held invalid mandatory capital punishment statutes covering
a wide range of offenses, it has never been held that all
mandatory capital punishment statutes are necessarily incon-
sistent with the Constitution (see Roberts [Harry] v Louisiana,
431 US —, 97 S Ct 1993; Roberts [Stanislaus] v Louisiana, 428
US 325; Woodson v North Carolina, 428 US 280). In fact, it
has been noted, explicitly, that mandatory capital punishment
B27
PEOPLE v DAVIS [43 NY2d 17] 43
Dissenting Opinion per Chief Judge Brerrec
statutes applied to assaults or murders committed by prison-
ers serving life sentences might well pass constitutional mus-
ter (Roberts [Harry] v Louisiana, 413 US —, 97 S Ct 1993,
1996, n 5, supra; Roberts [Stanislaus] v Louisiana, 428 US 325,
334, n 9, supra; see Gregg v Georgia, 428 US 153, 186, supra;
Woodson y North Carolina, 428 US 280, 292, n 25, supra).
The life prisoner presents a special case, according to the
Supreme Court, because there may be no satisfactory deter-
rent other than the death penalty. But the court did not hold
that only in the case of a life prisoner may a mandatory
capital punishment statute be applied. Only a weak imagina-
tion would fail to perceive other cases just as special as that of
the life prisoner. For instance, belief that a soldier is fright-
ened of death and considering desertion in time of war may
justify the threat of capital punishment to keen him at his
station. And, of course, a prisoner like appellant James in the
instant case, not yet sentenced to life imprisonment, but
facing a murder charge which could well bring upon him such
a sentence, presents a case no different from that of the life
prisoner. Nor would the killing of a victim of or witness to a
crime punishable by life imprisonment, to prevent successful
identification and prosecution for the first crime, be of a
different nature.
The Supreme Court has recognized, then, that mandatory
capital punishment statutes applicable only in very special
cases may not run afoul of constitutional limitations. It is not,
however, necessary to decide whether all the categories of
section 125.27 of the Penal Law constitute “special” cases,
because the New York statute is not truly a “mandatory”
capital punishment statute, as that term has been used by the
Supreme Court.
Crucial are the statutory defense of extreme emotional
disturbance and the limitation on conviction of first degree
murder to persons more than 18 years old. These mitigating
circumstances are precisely the kind of factors, specific to the
offense or the offender, which the Supreme Court has required
to sustain capital punishment statutes (see, eg., Gregg v
Georgia, 428 US 153, 193-195, n 44, supra). In fact, of the eight
mitigating circumstances proposed by the Model Penal Code,
and cited in Gregg, six are, in some manner, reflected in the
New York statutory scheme: (1) extreme emotional distur-
bance is a defense to murder (Penal Law, § 125.27, subd 2, par
[a]); (2) conduct causing or aiding another to commit suicide
B28
44 43 NEW YORK REPORTS, 2d SERIES
Dissenting Opinion per Chief Judge Breirer
may not bring a conviction for murder (Penal Law, § 125.27,
subd 2, par [b]); (3) justification for the killing is a defense
(Penal Law, art 35); (4) duress is a defense (Penal Law, -
§ 40.00); (5) lack of capacity by reason of mental disease or
defect is a defense (Penal Law, § 30.05), and intoxication may
negative the intent to commit first degree murder (Penal Law,
§ 15.25; People v Koerber, 244 NY 147, 151-152; see People v
Jackson, 14 NY2d 5, 7-8); and (6) only those over 18 years of
age at the time the crime was committed may be convicted of
first degree murder (Penal Law, § 125.27, subd 1, par [b]). (See
Gregg v Georgia, 428 US 153, 193-194, n 44, supra, quoting
ALI Model Penal Code, § 210.6 [Proposed Official Draft, 1962].)
It is notable that these are factors that the Supreme Court
in the Roberts (Harry) case (431 US —, 97 S Ct 1993, 1995-
1996, supra), relied on and quoted by the majority, stipulated
as bearing upon the validity of a capital punishment statute.
New York’s statutory scheme is even better in raising these
factors to complete or partial defenses.
True, other capital punishment statutes sustained by the
Supreme Court have provided for consideration of mitigating
factors after the jury has convicted defendant of the substan-
tive offense (Gregg v Georgia, 428 US 153, 196-198, supra;
Proffitt v Florida, 428 US 242, 247-253; supra; Jurek v Texas,
428 US 262, 268-274, supra). But there is no reason to assume
that mitigating factors could not, instead, and even preferably,
be built into the definition of the substantive offense. Indeed,
the Supreme Court itself used-similar analysis in Jurek v
Texas, indicating that narrowing the categories of murders for
which capital punishment may be imposed serves much the
same function as listing aggravating factors for the jury to
consider (supra, p 270). The situation is analogous where
mitigating factors are involved. Certainly, if every possible
mitigating factor were made a defense to the substantive
crime, there would be little reason for the jury to consider
_ mitigating factors in making a discretionary sentencing deter-
mination. _
Section 125.27 of the Penal Law does not, of course, encom-
pass every conceivable mitigating circumstance. But the Con-
stitution does not require so much. It is essential only “that
the capital sentencing decision allow for consideration of
whatever mitigating circumstances may be relevant to either
the particular offender or the particular offense” (Roberts
[Harry] v Louisiana, 431 US —, —, 97 S Ct 1993, 1996, supra).
te 7 SO PICS TEM EPO IN Ge 42 5
B29
PEOPLE v DAVIS [43 NY2d 17] 45
Dissenting Opinion per Chief Judge Brerren
[termining what circumstances are “relevant” must be a
igislative, not judicial, task, at least once it has been deter-
mined that the Legislature has in fact decided to consider
mitigating factors.
Nor in justice to the Supreme Court should it be assumed
that that court would harden for all time under constitutional
standards all conceivable categories of mitigating circum-
stances or that all must be accorded recognition, or that the
procedure for their recognition must follow a particular pat-
tern laid down by the court. It has had much too much
trouble with this very problem not to be more flexible. The
very caveats and provisos in its most recent opinions make
this point explicit so that it is not necessary to have recourse
to inference. Moreover, that court addresses constitutional
principles and does not purport to write or dictate a statutory
criminal code.
To recapitulate, it has never been held that all mandatory
capital punishment statutes violate the cruel and unusual
punishment clause of the Constitution. At least in a narrowly
drawn category of special cases, a category which may be
broad enough to include the entire New York statute, failure
to provide for consideration of mitigating factors does not
make a capital punishment statute constitutionally defective.
But, in any event, the New York Statute, although written in
mandatory terms, is not embracively mandatory in that it
coes not encompass, indiscriminately and without considera-
tion of mitigating factors, a mass aggregation of crimes. Thus,
since section 125.27 of the Penal Law does require the jury to
consider mitigating factors as elements of the substantive
crime of first degree murder, there is no constitutional viola-
tion.
That the Constitution plays an important role in limiting
the scope of capital punishment statutes is not now a matter
of controversy. Unbridled jury discretion, because of possible
discriminatory effects, must not be an element of the sentenc-
. Ing process in capital cases (Furman v Georgia, 408 US 238,
reh den 409 US 902). At the opposite end of the spectrum,
statutes which require mechanical application of the death
penalty without any consideration of circumstances surround-
ing the crime and the criminal, are also unconstitutional
‘Roberts [Harry] y Louisiana, 431 US —, —, 97 S Ct 1993,
1996, supra; Roberts [Stanislaus] v Louisiana, 428 US 325, 333,
*upra; Woodson v North Carolina, 428 US 280, 304, supra).
B30
46 43 NEW YORK REPORTS, 2d SERIES
Dissenting Opinion per Chief Judge Brerret
But within the constitutional limitations, the decision to
impose capital punishment at all, as well as the decision when
it should be imposed, remains within the province of the
Legislature. True, it has never been established that capital
punishment is an effective deterrent. But there may be other
reasons, unrelated to utilitarian considerations, to justify the
death penalty. Whatever one thinks of capital punishment,
the Legislature is entitled to conclude, rightly or wrongly, that
the death penalty serves useful social purposes. Since the
Legislature has so concluded, and has drawn a statute that
comports with constitutional requirements, the statute should
be upheld.
The ultimate issue is whether society through its Legisla-
ture or lawmaking body may determine the usefulness of
capital punishment or whether Judges are empowered to do
so, recognizing that capital punishment has been a sanction
throughout the history of Anglo-American law. Progressively,
lawmaking bodies have restricted more and more the use of
that sanction. Rarely, although on occasion, has the sanction
been reinvoked. England treated the matter legislatively and
eliminated the sanction for murder (Murder [Abolition of
Death Penalty] Act, 1965, c 71, as amd by Statute Law
{[Repeals} Act, 1973, and Statute Law [Repeals}] Act, 1974).
Many States of the Union have abolished capital punishment.
The Supreme Court, both in Furman, and in subsequent cases,
has never presumed to strike down the sanction as inherently
invalid. It has only attacked the procedures used which al-
lowed arbitrariness or compelled mechanical absolutist appli-
cation across a broad range of homicide offenses. Nor has it
ever presumed, in this troubled area, to deny the power of the
Legis'ature to rely on the extreme sanction. Its greatest
concern has been the racial discrimination which resulted
from the arbitrariness allowed fact finders and sentencing
courts under the old procedures ‘see Furman v Georgia, 408
US 238, supra). In the later cases it reacted to the brutality
and undiscriminating mechanical application of the “absolut-
ist” cure to the risk of arbitrariness in the “discretionary”
procedures which had prevailed before (see Woodson v North
Carolina, 428 US 280, supra; Roberts [Stanislaus] v Louisiana,
428 US 325, supra; Roberts [Harry] v Louisiana, 431 US —, 97
S Ct 1993, supra). These are the concerns which motivated the
Supreme Court’s treatment of the problem.
Accordingly, I dissent in part and vote to reduce the judg-
B31
PEOPLE v DAVIS [43 NY2d 17] 47
Dissenting Opinion per Chief Judge Brerrec
ment against appellant Davis to a conviction of second degree
murder, and to remit the case for resentencing, and to affirm
the judgment against appellant James.
Judges Jones, WACHTLER and FUCHSBERG concur with Judge
Cooke; Chief Judge Breiret concurs in a separate opinion in
which Judges JASEN and GABRIELLI concur.
In People v Davis: Judgment modified and the case remitted
to Supreme Court, Westchester County, for resentencing in
accordance with the opinion herein and, as so modified, af- .
firmed.
Judges Jones, WACHTLER and FUCHSBERG concur with Judge
Cooke; Chief Judge Breirex dissents and votes to affirm in a
separate opinion in which Judges JASEN and GABRIELLI con-
cur.
In People v James: Judgment modified and the case remit-
ted to Supreme Court, Kings County, for resentencing in
accordance with the opinion herein and, as so modified, af-
firmed.
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