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Murder in the First Degree…cont

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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