New York Criminal Lawyer Blog
Defendant was convicted of murder in the second degree, burglary in the second degree, grand larceny in the second degree, possession of burglar’s tools, possession of a weapon in the third degree and unlawful possession of noxious materials.
A New York Criminal Lawyer said that the crime started out as a simple burglary but led to the death of a police officer.
The facts dictate that a police car pulled into an alleyway and a police officer shone a flashlight at defendant. She then got up and walked over to the police officer who asked her what she was doing there. She replied that she was looking for her cat. The police then asked for some identification and she presented an address book, but her name was not in it.
According to defendant, while she was being questioned, her boyfriend yelled to her to “run”; she thereafter heard a shot. The officers immediately ran around to the front of the store, with her following behind them, and in the ensuing confusion, she ran away.
Apparently, a Westchester County Criminal Lawyer said that the other police officer who was told to go to the front of the store has been shot by the boyfriend upon leaving.
Two witnesses, both bystanders, testified to the shooting of the police officer but with contradictory details.
The police officer subsequently died.
The record further makes it clear that what had happened was that the burglary had been interrupted by the arrival of the police officers while on a motor patrol.
A Queens Personal Injury Lawyer said that shortly after the shooting, the Police conducted an extensive dragnet. The defendant’s description was circulated by the police to the various motel attendants in the area. Consequently, the defendant was apprehended. The defendant was placed into a police vehicle and given her four-fold Miranda warnings, which she said she fully understood. The police wanted to know the identity and whereabouts of her male accomplice. The defendant responded that she and her boyfriend had been forced at gunpoint to do the burglary by an unknown White male.
The defendant was then transported to the police mobile command bus where she was again given her four-fold Miranda warnings, which she said she completely understood. She indicated that she would talk to the detective without an attorney being present. The defendant then repeated the story she had given the arresting officers to the effect that she and her boyfriend had been forced to commit the burglary. The detective interrogating the defendant replied that defendant was lying; that he had witnesses to show otherwise and that she should tell the truth. The defendant then gave the detective an oral statement. She now claimed that she had not known that her boyfriend was armed and that he forced her to participate in the burglary by slapping her. Her oral statement was reduced to writing and signed by her. While being questioned, the defendant identified certain articles recovered at the crime scene, to wit, a bent screwdriver, gloves and a can containing mace, as belonging to her boyfriend. She also admitted that she, too, had possessed mace.
Is the defendant guilty of the crime of felony murder (murder in the second degree)?
A fair question as to this issue was presented, inasmuch as defendant was in temporary police custody just prior to the shooting and this could conceivably have both terminated the underlying felony and severed the felony murder connection and that, therefore, the failure to so charge constituted a fundamental denial of the right to a fair trial.
The question of when the underlying felony ends, so as to sever its connection with a subsequent murder, and what a trial court must charge as factual considerations was, quite recently considered by the Court of Appeals.
In deciding whether a felony murder has been committed, it makes no difference whether the shooting actually occurred in the course of or in the furtherance of the burglary alleged, or whether it occurred in the immediate flight therefrom.
The elements of the crime of murder in the second degree under this count of the indictment are: (1) That at the time and place set forth in the indictment the defendant either acted alone or with one or more persons, each aiding and abetting the other, committed or attempted to commit a burglary; (2) That in the course of and in furtherance of the burglary, or of the immediate flight therefrom, the defendant, or another participant in the crime, caused the death of the victim; (3) That the victim was not a participant in the underlying crime of burglary.
Here, the shooting occurred at the very scene of the burglary; the shooting occurred with the fruits of the crime in the trunk of the automobile and therefore at least in defendant’s constructive possession; the defendant was never in custody but was merely questioned by the police for about three minutes and this fact is made unmistakably clear when it is recalled that there is no dispute that she was left unattended when the police heard the shot.
Under the aforesaid circumstances to argue that the questioning of defendant by the police for at the most three minutes terminated her participation in the underlying felony and severed the felony murder connection is a futile attempt to split into unrelated parts an indivisible transaction. No amount of intellectual quicksand reasoning can change the fact that successful escape is obviously contemplated as part of a felony endeavor and that although defendant didn’t shoot the police officer, she escaped in the course of the burglary and shooting.
The further contention urged by the defendant, that her boyfriend was in temporary custody so as to sever his part of the felony, is belied by the record. The boyfriend was never in custody; the apparent and chilling ease with which he fatally wounded the police officer makes this inescapably clear. To accept the defendant’s narrow interpretation of the concept of a felony being committed in the course of the burglary or of “immediate flight therefrom” would do violence to the intent of the Legislature as evinced by the language of the statute. Thus, the court’s charge on this issue which, in effect, left the issue of “termination” and “flight” to the jury as a question of fact was more favorable to her than the record warranted.
Is the affirmative defense of duress warranted?
The defendant claims that she was coerced into helping her boyfriend by the latter’s various threats.
The argument does not bear close scrutiny. It is well settled that the trial court’s obligation to charge a particular factual question does not arise until there exists a minimal threshold of evidence which points to this conclusion and which would allow a reasonable jury to so determine. This is particularly true with an affirmative defense, which the defendant must raise during the course of the trial, and prove by a preponderance of the evidence.
The record reveals that: defendant acted as “chickie” or lookout for her boyfriend to forewarn him of the approach of the police; defendant took the stolen goods and neatly stacked them in the trunk of her boyfriend’s car; when the police car approached, the defendant hid behind the alleyway trashcans and emerged only when one of the police officers shone his flashlight at her; and upon inquiry as to what she was doing there at 2:30 A.M., she gave the false and misleading answer that she was looking for her “calico cat”; upon the shooting, she fled.
Whether the defendant lacked the subjective intent to aid and abet her boyfriend because he allegedly coerced and “smacked” her can only be determined by the objective manifestations of her actions; every single one of her actions were unequivocally and thoroughly referable only to an intent to aid and abet her boyfriend and demonstrated that she was not acting under the siege of “duress”.
Under the circumstances, the refusal to charge the defense of duress was proper.
Moreover, it is now well settled that the affirmative defense of duress must be raised or asserted during the course of the trial in order to give the prosecutor a fair opportunity to rebut the evidence, or cross-examine any defense witnesses on that issue. Since the defendant flatly refused to state that she was relying on the defense of duress until after the court had charged the jury, it would have unfairly prejudiced the People to submit that issue to it since it was then too late for them to submit evidence on that issue. This was a trial a search for a just result and not a poker game in which players enjoy an absolute right always to conceal their cards until played. In any event, it is clear that the court could properly have refused to charge duress because that defense is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
Accordingly, defendant is guilty of the crimes charged.
If you are faced with a similar situation as the above, get in touch with Stephen Bilkis & Associates. Have a talk with our exceptional lawyers for a free consultation and be advised by the best Nassau County Criminal Attorney or Nassau County Arrest Attorney in all of New York City.