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Murder in the First Degree

In this Criminal case, the Defense Counsel moved for the dismissal of the Indictment upon the grounds of: Multiplicity, Duplicity, Double Counting; Vagueness and Resulting Insufficiency, and Sufficiency.

A Queens County Criminal attorney said that the Assistant District Attorney opposed such motion and this Court then calendared oral argument. On the same hearing, Defense Counsel served upon the Court a request to adjourn oral argument in order to afford Counsel an opportunity to submit a written reply to the District Attorney’s Memorandum of Law. The Court denied in part and granted in part such request and thereafter, entertained oral argument on the issues hereunder. The Court was in receipt of Defense Counsel’s supplemental reply affirmation in support of the motion to dismiss the indictment.

Defense Counsel alleges that when death is a possible outcome of a criminal prosecution, state and federal law demand a heightened standard of due process at every phase of a capital case, from indictment to appeal. Specifically, Defense alleges that the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment, requires a more stringent standard of due process in capital cases. Defense further contends that the New York State Constitution expands that requirement and includes several provisions which specifically augment protection for a capital-eligible defendant.

The New York State Legislature, in authorizing the imposition of the death penalty for Murder in the First Degree, made a multitude of changes to the statutory scheme. The Penal Law, the Criminal Procedure Law, the Judiciary Law, the County Law, the Correction Law and the Executive Law, all underwent extensive alterations to implement various aspects in the capital case proceeding. However, neither the United States Supreme Court nor the New York State Court of Appeals, nor the Legislature make statutory changes encompassing a blanket “heightened due process” standard for death penalty cases.

Defense Counsel, in support of his application for “heightened due process” overreads the holding in several federal court decisions and seeks to apply the procedural safeguards required in death penalty cases to stages of the proceeding where they have previously never been required. While it is axiomatic that a death penalty case is qualitatively different from all other kinds, it does not require a judicial rewriting or reinterpretation of the rules governing the various pretrial proceedings. To assume that a capital case requires such a “heightened” standard in pre-trial proceedings would invariably conclude that defendants in non death penalty cases would warrant a lesser standard of due process.

The Court is cognizant that death penalty cases require special care and warrant certain procedural safeguards. All necessary precautions to ensure that the defendant’s rights will be protected in this case will be undertaken by this Court. Accordingly, the defendant’s motion for “heightenened due process” during the various stages of this proceeding is denied in all respects.

An indictment is multiplicitous when two or more separate counts charge the same crime. An indictment is not considered multiplicitous if each count requires proof of an additional fact that the other does not.

To Be Cont….

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