People v. Murray

Third Street in Mount Vernon. According to this evidence, defendant stated that as he walked along that street, he saw a man slumped over the steering wheel of a car, apparently sleeping, and decided that "he would take him [the victim] off”. After unsuccessfully attempting to enter the car, defendant opened the driver-side door, awakened the victim and said, "Man, do you know you can be taken off here? You can be mugged”. Whereupon the victim answered, "Don’t worry. I can take care of myself’, and offered the defendant some french fries. Detective Tetro further testified that "it was then that [defendant] stated that he said to the victim, T’m going to take you off. Give me all your money.’ With this, the victim turned in the seat of the car. As he was getting out, he kicked [defendant], knocking him to the ground. The victim got out of the car. He was standing against the door. [Defendant] said he got up off the ground, punched the victim. The victim in turn punched him and knocked him back to the ground again and he said at this time he had an open knife in his pocket, took it out of his pocket, got up off the ground and plunged the knife into the victim. He said he stood there and he seen blood coming out of the victim’s shirt. He said at this time he panicked, and he ran around the car and went into the hallway of 57 West Third, out to the backyard, where he "stated he dropped the knife, and continued out, jumped the fence and went out onto Eighth Avenue.” Medical testimony showed that the fatal knife wound entered the victim’s heart from a left to right angle of 15 degrees and was from three and a half to four and a half inches deep. There was evidence, via the autopsy, that the victim’s brain showed a .20% blood alcoholic content at death, and that he had french fries and nonred meat in his stomach. Other evidence established the presence of french fries spread in and about the vehicle.

Defendant took the stand in his own defense and denied the statements attributed to him by Officer Tetro. He claimed that the victim was an illicit drug supplier known as "Tee” to whom he, an addict and small-time pusher, owed money. He asserted that, in the course of a disagreement and resultant struggle over the quality of drugs supplied to him and the amount of money he owed therefor, he stabbed "Tee” in self-defense and then fled from the scene.

After the prosecution had rested, the Trial Judge granted a defense motion to dismiss the attempted robbery and larceny counts on the ground that the prosecution had not corrobo

held that in establishing a felony murder charge, "there [is] no need for evidence, separate and apart from the [defendant’s confession] of the underlying felony” (see, also, People v Gold, supra; People v Joyce, supra; cf. People v Roach, 215 NY 592 , 601). No reason appears to require us to now depart from these sound, established precedents.

Nor is the New York rule unique. In People v Cantrell ( 8 Cal 3d 672 ) the California Supreme Court unanimously rejected the claim that the People need establish the corpus delicti of the underlying felony to introduce a defendant’s extrajudical statements. Held sufficient there were statements by the defendant that he had been sexually molesting the victim immediately before he strangled him, thereby establishing the requisite felony upon which the felony murder charge was based.

Defendant contends nevertheless that the dismissal of the underlying felony counts perforce requires dismissal of the felony murder charge. However, we have only recently rejected that very argument (People v Dennis, 33 NY2d 996 , affg 40 AD2d 959 ). Moreover, any claim of double jeopardy or collateral estoppel is untenable upon the facts of this case for it is manifest that the dismissal of the predicate felonies was solely the result of the lack of corroborating evidence thereof, and not any failure to prove the crimes beyond a reasonable doubt. Hence, the factual question whether defendant committed the acts charged was left open for the jury, their having conclusively decided the issue in favor of the prosecution.

We find no merit in the additional argument that the change in form of indictments (see CPL 200.50) effected by the enactment of the CPL in 1971 was in any way intended to alter or strengthen CPL 60.50. As noted at the outset, the drafters of CPL 60.50 intended no change in its scope and retained "the corroboration rule enunciated in Criminal Code § 395” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11B, CPL 60.50, p 331). No legislative history exists to support a contrary conclusion.

The confession corroboration rule does not require that each element of the crime of felony murder be established by evidence apart from the confession. Indeed, Professor Wig-more called several aberrant holdings requiring such additional proof "too absurd to be argued with” (7 Wigmore, Evidence [3d ed], § 2072, subd [3]). As has been made plain, "the confession alone is enough to implicate the defendant;

the independent evidence need not connect or even tend to connect the defendant with the crime” (People v Jennings, 33 NY2d 880 , affg on the opn thereat 40 AD2d 357 , 362). By requiring the production of additional proof aliunde the confession the dissenters are urging the adoption of a "second best” evidence rule, ironically preferring circumstantial proof of the actor’s aim over his own assessment of what he thought he was doing. In short, the purpose of CPL 60.50 is to establish that the deed was done and by a human agency; thereafter, the truth of the confession and the proof of intent is for the jury.

As to the felony murder conviction, I would further add that some of us hold that even if the rule posited by the dissenters were to be applied in this case, an affirmance would nonetheless be required. There was sufficient evidence of the predicate felony to satisfy the meager requirements of CPL 60.50, as indicated by the signs of a struggle, the clothing of the victim being in a state of disarray and, further, that his wallet, later recovered and returned to the family of the victim, was not found at the scene (see People v Daniels, 37 NY2d 624 , supra; People v Jennings, 33 NY2d 880 , affg 40 AD2d 357 , 362, supra).

A defense request that, on the common-law murder count, the Trial Judge charge the jury as to manslaughter, second degree, was denied. Upon this record, this was error (People v Tai, 39 NY2d 894 ).

Accordingly, the order of the Appellate Division should be modified to the extent of reversing defendant’s conviction of manslaughter, first degree, and a new trial granted thereon; and, except as so modified, the order should be affirmed.

(concurring). I concur in the modification but solely on the ground that there was sufficient corroboration of the underlying felony.

(dissenting). Defendant Melvin Murray was convicted, after a jury trial, of felony murder, manslaughter in the first degree and the felonious possession of a weapon. The conviction was predicated solely upon defendant’s admissions to the police that he fatally stabbed Donald Carney when Carney resisted defendant’s attempt to rob him. The Appellate Division unanimously affirmed the judgment of conviction in a brief entry and a Judge of this court granted defendant leave for further appeal.

The principal issue before us is whether a conviction for felony murder may stand though the evidence is legally insufficient to support a conviction for the underlying predicate felony. I would hold that it cannot and two of my brethren share my view. Three other members of the court take the opposite view. The seventh member of the court takes the position that the issue need not be resolved to decide this case since there is sufficient corroboration to sustain this conviction for felony murder. The division in the court today, unfortunately, leaves the question of law in limbo. The policy of this State that no person be convicted solely upon his own admission or confession requires that, where a defendant confesses to a felony murder, the prosecution must produce corroborating evidence of both the felony and the murder. Here, adequate corroboration of the underlying felony was not presented and, therefore, the defendant’s conviction for felony murder cannot stand.

In the early morning hours of August 5, 1972, two Mount Vernon police officers assigned to the Emergency Command Unit were on a routine patrol in the vicinity of Seventh Avenue and Third Street. A passing motorist hailed the patrol car and, through an open window, shouted that there was a man lying in the street between Seventh and Eighth Avenues. The officers turned the corner and found a man lying face down in a pool of blood in front of 59 West Third Street, a few feet away from an unoccupied automobile. The police found part of a broken denture, some particles of food and food packaging, both directly underneath the vehicle as well as on the driver’s seat. There was a considerable amount of blood on both the interior and exterior of the car. The injured man, still bleeding from a chest wound, was taken to the emergency room of Mount Vernon Hospital where, shortly after arrival, he died. A brief search of the body did not produce a wallet or other identification. Each of the responding officers reported that they did not find a wallet on the deceased’s person. At some point, however, the wallet must have been recovered since the widow testified that the police later returned her husband’s wallet, with identification papers and some currency still inside. The police did find an out-of-State vehicle title certificate, listing the owner as Donald Carney, in the glove compartment of the automobile. Mrs. Carney, a resident of New Rochelle, was summoned to identify the body.

The police commenced their investigation by taking several

carloads of bystanders down to police headquarters for questioning. The questioning and a search and examination of the vicinity failed to produce any leads. At approximately 10:00 a.m., the police received an anonymous telephone call which caused them to commence a search "for a man whose name we knew as Melvin”. The officers "went out and picked up several persons we knew and we talked with informants and found another person by the name of Melvin and the only one we couldn’t locate was a Melvin Murray at 156 South 13th Avenue. We had gone to that address, we spoke to a few people about him. Nobody had seen him. And then we returned to headquarters.” In the afternoon, the police received a telephone call from Gladys Murray, the defendant’s mother, inquiring whether the police were looking for her son. She told the police that she had not seen her son since the previous day but would tell him that the police were looking for him.

Later that evening, at approximately 6:15 p.m., the defendant and a woman entered the office of the Detective Division of the Police Department. The defendant asked the desk officer whether there was a warrant out for his arrest. After a check of the records, the officer asked the defendant "if that was the real reason he had come in.” The defendant replied negatively, "it was about the thing on Third Street”. The defendant was brought into an interview room and was given the standard preinterrogation warnings. The defendant then stated "that he had gotten into a fight and that he had stabbed him.” The defendant was immediately booked and the detective assigned to the case, Detective Tetro, was summoned back to headquarters. Detective Tetro repeated the standard preinterrogation warnings and obtained a more complete statement. The defendant told Tetro that as he was walking past 57 West Third Street, he noticed a man slumped over the steering wheel of a car. After walking to the corner, defendant decided to "take the man off’ and returned to the car. The passenger-side door would not open and knocks on the window failed to arouse the driver. He walked over to the driver’s side, opened the door, and woke the driver up. After defendant demanded money, the driver turned in his seat and kicked the defendant, knocking him to the ground. After an exchange of punches, defendant took a knife from his pocket and stabbed the driver. The defendant fled the scene, dropping the knife in the backyard of the building at 57 West Third Street. Defend

ant went to a friend’s home where he changed his shirt. After taking the statement, Detective Tetro and other officers brought the defendant to the scene of the crime. A search of the area described by defendant failed to turn up the knife. A stop at the friend’s home produced a shirt without blood on it that "appeared to be new and clean”, this despite the extensive bleeding of the deceased resulting from his chést wound.

The defendant was indicted for murder, felony murder, two counts of attempted robbery in the first degree, attempted grand larceny in the third degree, and felonious possession of a weapon. At the close of the People’s case, the court granted motions to dismiss both attempted robbery counts and the attempted grand larceny count. At trial the People relied upon the admissions of the defendant and medical testimony indicated that Carney had died of a stab wound in the chest. Defendant testified that he owed Carney, known to him as "Tee”, a sum of money and, after leaving a party, he met Carney by coincidence in front of 70 West Third Street. After defendant told Carney that he would have to wait for his money, Carney struck the defendant. The defendant was getting the better of the ensuing fight and Carney reached into a pocket and pulled out a knife. The defendant grabbed Carney’s arm and the men struggled for the knife. After a while, Carney ceased struggling, the defendant backed away, and the knife fell into the street. When Carney did not respond to a question, defendant became scared and ran away.

It is plain from a review of the evidence that the People’s case rested entirely upon the defendant’s admissions, coupled with the corpus delicti, a body bearing the tokens of a criminal assault. In our view, there was no corroboration at all of the attempted robbery confessed and that the robbery-related charges were properly dismissed. The reliance of four members of the court on the indicia of a physical altercation and the absence of a wallet on deceased’s body for corroboration is misplaced. Defendant concedes that there was an altercation, only he contends, as brought out during the trial, that the brawl was induced by deceased and that his response was prompted by a legitimate need for self-defense. Thus, the physical signs of a struggle are as "corroborative” of defendant’s trial testimony as they might be of his confession and, thus, lack any probative value at all. The absence of a billfold is an obvious makeweight. The body of the deceased remained in the street for a considerable period of time before it was

the course of or in furtherance of or in flight therefrom, he or another participant in the felony causes the death of a nonparticipant. (Penal Law, § 125.25, subd 3.) Under modern statute, as well as at common law, the fact that a homicide was committed in the course of a felony itself supplied proof that the homicide was committed with the malice and felonious intent necessary to sustain a murder conviction. Even where it was evident that the defendant did not and could not have intended to kill, "the malicious and premeditated intent to perpetrate one kind of felony, was, by implication of law, transferred from such offense to the homicide which was actually committed, so as to make the latter offense a killing with malice aforethought, contrary to the real fact of the case as it appeared in evidence.” (People v Enoch, 13 Wend 159 , 174, 175; People v Hüter, 184 NY 237 , 243; People v Nichols, 230 NY 221 , 226-227; People v Luscomb, 292 NY 390 , 395.) "It is the malice of the underlying felony that is attributed to the felon”. (People v Wood, 8 NY2d 48 , 51; see, also, People v Bornholdt, 33 NY2d 75 , 85, cert den sub nom. Victory v New York, 416 US 905 .) The felony murder doctrine infers from the intent to commit one of nine serious felonies the intent to commit, if necessary, a murder in order to achieve the criminal purpose. (See Gegan, Criminal Homicide in the Revised New York Penal Law, 12 NY Law Forum 565, 586.) By benefit of statute, therefore, it is possible to obtain a felony murder conviction where the defendant could not be convicted of common-law murder since he did not act with specific homicidal intent. The vital item then in felony murder is the predicate felony, for without it the delicate legal fiction has no play.

At the same time, the law continues to provide that no person may be convicted by his own statement alone. Before a conviction may be had, a confession or admission must be corroborated by "additional proof that the offense charged has been committed.” (GPL 60.50.) This requirement, the weakest of all corroboration requirements, is designed to guard against the possibility that a defendant might be convicted and jailed for a crime that never occurred. Thus, the prosecution must adduce some proof, of whatever weight, that a crime was committed by someone. (See, e.g., People v Daniels, 37 NY2d 624 , 629; People v Reade, 13 NY2d 42 , 45; People v Cuozzo, 292 NY 85 , 92.)

In People v Lytton ( 257 NY 310 ), this court first directly

was charged and the charge was, as it should have been, dismissed. If it is difficult to contend that a felony murder be found where the proof of the felony is insufficient, it is doubly difficult to argue that the felony murder conviction may stand though the underlying felony originally charged was dismissed.

We recognize the well-established rule that a confession of homicide is amply corroborated by the finding of a body bearing the indicia of a criminal assault. At the same time, there is the more fundamental rule that each element of the crime must be established by proof beyond a reasonable doubt. (CPL 70.20.) Thus, the confession in these cases must supply both the intent and the act. If the defendant admits an intentional killing, the finding of the corpus delicti amply verifies that admission. On the other hand, if the defendant informs the police of a justifiable homicide, then the requisite intent must come from outside the confession. Similarly, in felony murder, where the intent flows from the underlying felony, there must be corroborating evidence of the felony. To state that the finding of the body corroborates the fact of a death in the course of a felony is to pile an inference on top of an inference. Although the People may have proved, with the aid of the confession, a homicide, they have not proved a felony murder. Since 1971, proof of a generic homicide has been insufficient. To obtain a murder conviction based on an admission, the admission must supply all the elements of the crime of murder, including intent, and the People must produce corroborating evidence. But here, they did not corroborate a felony murder and, according to the jury, did not prove an intentional killing.

We do not hold that in each case of felony murder the prosecution must charge and convict for the underlying felony. Rather, we hold simply that there must be, in the record, legally sufficient evidence to corroborate defendant’s admission that he participated in a felony during the course of which a death ensued. In this case, there is no corroboration and the conviction is not supported by legally sufficient evidence.

Three of our colleagues, with all due respect, miss the point. Although there may have been corroborating evidence of homicide, there has been no corroborating evidence of the felony underlying this felony murder conviction. There is no crime of homicide; there is the general category of homicide, with crimes defined in accordance with the intent of the

perpetrator. Here, the defendant did not confess to intentionally killing his victim. Indeed, the jury found, on the count of common-law murder, that there was no intentional killing.

Although corroboration need not extend to every element of the crime, each element must be proved beyond a reasonable doubt. Where there is no proof of an intent to kill and no corroboration or an admission that a predicate felony occurred, the element of mens rea has not been established to the extent required by law. Here, there has been no proof of intent and, likewise, no legally sufficient proof of the predicate felony of attempted robbery. Hence, there has been no sufficient proof of defendant’s guilt of intentional murder, or of felony murder. It is fundamentally unfair, if not shocking to a concerned conscience, that, as our three colleagues maintain, an unproved felony may be employed to artifically raise the defendant’s culpable mental state. Surely, it is wrong to read the felony out of felony murder. We would free the defendant of the charge of felony murder because there has been insufficient proof, as a matter of law, of that crime. It is too late in the day to argue that a confession by itself is sufficient proof of guilt. It is even more obvious that a man should not be held for a crime for which his guilt has not been established in a court of law. We would hold that a man-slaughterer cannot be punished as a murderer because of the unsupported use of a legal fiction.

Had there been no error in the court’s charge with respect to manslaughter, second degree, we would have no difficulty in modifying the Appellate Division order appropriately. However, all the members of the court agree that the trial court erred in refusing to charge manslaughter in the second degree as a lesser-included offense. A defendant is entitled to a charge down to a lesser-included offense if, upon any view of the facts, a jury might properly find that the defendant committed the lesser crime and not the greater. (CPL 300.50; People v Asan, 22 NY2d 526 .) "Under the circumstances of this case, the jury could reasonably have believed defendant’s claim that he was not the initial aggressor but only attempted to repel the victim’s attack upon him, and at the same time accept the evidence that defendant, at some point during the the struggle with the victim, inflicted fatal wounds on [him]. Thus, the jury might have found that defendant acted recklessly and therefore committed acts constituting manslaughter in the second degree (Penal Law, 125.15)”. (People v Tai, 39

NY2d 894 .) The refusal to charge manslaughter in the second degree was error requiring a new trial.

We conclude, therefore, that the order of the Appellate Division should be reversed; the felony murder count in the indictment should be dismissed (CPL 470.40, subd 1; 470.20, subd 2); and a new trial should be ordered on the remaining counts of the indictment.

Judges Jones and Cooke concur with Judge Gabrielli; Judge Wachtler concurs in a separate opinion; Judge Jasen dissents and votes to reverse in another separate opinion in which Chief Judge Breitel and Judge Fuchsberg concur.

Order modified and case remitted to Westchester County Court for a new trial in accordance with the opinion herein and, as so modified, affirmed.