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.
Defense argues that such multiplicitous counts in the Indictment run afoul of the State and Federal Constitutions and that there should be no more than a single felony murder in the first degree count for each decedent. To buttress his argument, he claims that the inclusion of different felonies in the same statutory subsection of Murder in the First Degree make clear the Legislative intent that a single murder can only sustain a single charge under Penal Law § 125.27(1)(a)(vii), even if different underlying felonies are involved. Criminal Defense Counsel is mistaken in his interpretation of the statutory section.
The aggravating factors that elevate a murder to death penalty eligible status are provided in Penal Law § 125.27(1)(a)(i)-(xii). CPL § 400.27(3), entitled “Procedure for determining sentence upon conviction for the offense of murder in the first degree,” provides that “[f]or purposes of a proceeding under this section [i.e. the penalty phase], each subparagraph of subdivision one of section 125.27 of the penal law shall be deemed to define an aggravating factor.” In the defendant’s view, it is the phrase “an aggravating factor” which mandates that an indictment may charge only one count of murder in the first degree predicated upon subparagraph (vii).
To conclude otherwise, continues Defense, would improperly skew the penalty decision in favor of death by allowing duplication of a single aggravating factor. The People counter by arguing that the Legislature must have intended to permit separate charges arising out of different underlying felony aggravators because to limit multiple felonies to a single aggravator, would, in essence, hold the defendant blameless for all but one of numerous felonies in a single criminal transaction.
In this case, each of the various counts charging Murder in the First Degree requires proof that the alleged killing of the victim occurred during the furtherance of a different felony. The defendant was properly charged with respect to different counts of Murder in the First Degree as to each of the three decedents because his alleged conduct, though emanating from one set of acts involving each victim, violated various sections of the Penal Law. The mere fact that the Legislature chose to list a series of felonies together within one of the twelve subparagraphs of the aggravating factors (paragraph vii) cannot be taken to mean that they intended to allow only one count of intentional murder during the course of a felony to be charged, even if a criminal defendant committed an intentional killing in the furtherance of multiple felonies.
Therefore, regarding Defense Counsel’s claim of multiplicity as to the first ten Counts of this indictment, his motion to reduce all Murder in the First Degree Counts, each charging a distinct felony, to a single felony murder first degree Count for each decedent, is denied. Additionally, his motion to dismiss Counts 11 and 12 on these same grounds is also denied. The indictment as drafted is not multiplicitous nor is it in contravention of the statutory intent.
Preliminarily, CPL § 200.30 provides that each count of an indictment may charge one offense only and therefore a count that accuses a criminal defendant of more than one offense is called duplicitous. The test used to determine if an indictment contains a duplicitous count is whether a defendant could be convicted of “either one of the crimes charged in the count if the District Attorney waives the other.”
Moreover, it is fundamental that in order for a defendant to properly prepare a defense to the charges filed against him, an indictment must give the defendant notice of the charges and conduct that supports the charges. The Fifth Amendment to the United States Constitution, applicable to the various states pursuant to the Fourteenth Amendment, guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I, § 6 of the New York Constitution provides: “No person shall be subject to be twice put in jeopardy for the same offense” Duplicitous counts are forbidden because they fail to give a defendant fair notice of the charges against him.
In the instant indictment, the crimes with which the defendant James Allen Gordon are charged, occurred in a three story structure with a common front door, one apartment per floor, each apartment having its own front door. Criminal Defense Counsel contends that the burglary counts are duplicitous due to the People’s failure to particularize and connect a particular entry to a particular charge involving the burglary.
Accordingly, Defense Counsel has failed to establish that any counts of the indictment impermissibly double-counts the use of a weapon or the intent to kill. Thus, the motion to dismiss the aforementioned counts upon the ground of double-counting is denied in all respects.
Defense Counsel argues that several of the critical phrases defining the crimes with which the defendant is charged have not been defined with sufficient precision, making the statutory subsection defining those crimes unconstitutionally vague. Specifically, he articulates the phrases “in the course of”, “in furtherance of”, “in the same criminal transaction” and “especially cruel and wanton”, are unconstitutionally vague and overbroad, rendering the felony murder statutes unconstitutional pursuant to CPL § 210.25(3) and must be dismissed pursuant CPL § 210.20(1)(a). Further, Defense argues that the vagueness of the definitions of the charged crimes also make it impossible for the Prosecution to properly instruct the Grand Jury that voted this indictment under CPL § 190.25(6). For these reasons, Defense moves for dismissal of the first and second degree murder counts of the indictment arguing that they are defective pursuant to CPL § 210.35(5) and thus must bedismissed pursuant to CPL § 210.20(1)(c). Defense Counsel’s contentions are without merit.
When challenging the constitutionality of a statute “as applied,” a criminal defendant bears a “heavy burden of demonstrating that a statute is unconstitutional.” A penal statute will not be struck down as unconstitutionally vague as applied, if the statute: (1) provides persons with sufficient notice of what conduct is prohibited; and (2) does not “permit or encourage arbitrary law enforcement.” Applying these principles to the facts hereunder, compels the conclusion that the “in the course of” and “in furtherance of” elements of the capital felony murder statute, and the “same criminal transaction” element of the capital multiple murder statute are indeed constitutional.
A penal statute must be worded so as to put the defendant on notice of what conduct is prohibited and to limit the potential of arbitrary law enforcement. In this case the defendant received fair notice, in the indictment and in the Bill of Particulars, of the crimes with which he was charged. The basic function of an indictment is simply to notify the defendant of the crimes of which he stands indicted. An indictment need only contain “a plain and concise factual statement in each count which, without criminal allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant’s commission thereof and with sufficient precision as to clearly appraised the defendant of the conduct which is the subject of that accusation.”
The Court cannot conceive that the wording of the indictment hereunder fails in these requirements. Nor is this Court aware of any precedent which holds that these contested phrases have been considered unconstitutionally vague in the context of jury instructions pertaining to that crime. Likewise, there is no reason to believe that these very phrases are insufficiently precise for the purpose of defining an element of Murder in the First Degree.
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