EDWARD C. ALFANO, J.

Defendant, as part of his omnibus motion, moves to dismiss the indictment on the ground that subdivision 3 of section 125.25 Penal of the Penal Law (felony murder statute) is unconstitutional. The People oppose dismissal.

Defendant has been indicted for murder in the second degree (felony murder), robbery in the first degree (two counts), and robbery in the second degree.

It is well settled that, "There is a strong presumption that a statute duly enacted by the Legislature is constitutional * * * the invalidity of the law must be demonstrated beyond a reasonable doubt" ( People v Pagnotta, 25 N.Y.2d 333, 337). Furthermore, courts of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable ( Matter of Van Berkel v Power, 16 N.Y.2d 37).

With these principles in mind, the court will now address each of defendant's contentions.

AFFIRMATIVE DEFENSE

Defendant claims that the affirmative defense established in section 125.25 (subd 3, pars [a]-[d]) of the Penal Law violates due process of law. Although defendant does not cite any cases in support of this proposition, the court presumes that defendant is referring to Mullaney v Wilbur ( 421 U.S. 684).

Before the decision in Mullaney ( supra), the Court of Appeals held that the affirmative defense to felony murder does not violate due process of law ( People v Bornholdt, 33 N.Y.2d 75, 83-86, cert den sub nom. Victory v New York, 416 U.S. 905). After Mullaney, the Appellate Division, Third Department ( People v Donovan, 53 A.D.2d 27), the Appellate Division, Fourth Department ( People v Kampshoff, 53 A.D.2d 325) and the County Court, Dutchess County ( People v Wise, 94 Misc.2d 943, Rosenblatt, J.) held that the affirmative defense in subdivision 3 of section 125.25 Penal of the Penal Law does not violate due process. Federal courts which have addressed the New York statute after Mullaney have also upheld its constitutionality ( Victory v Bombard, 570 F.2d 66, 70, cert den sub nom. Victory v New York, 416 U.S. 905, supra; United States ex rel. Robinson v Warden, 419 F. Supp. 1, 4-6, affd 538 F.2d 313).

For the reasons stated in the above-mentioned cases, the court finds that the affirmative defense in subdivision 3 of section 125.25 Penal of the Penal Law is constitutional, and does not violate defendant's due process rights.

LACK OF ELEMENT OF INTENT

Defendant claims that subdivision 3 of section 125.25 Penal of the Penal Law is unconstitutional in that it violates his due process and equal protections of the law rights because the statute does not contain as an element the intent to kill. Although not expressly argued, the court will consider two arguments in this regard. The first is that the lack of the element of intent is in and of itself violative of due process. The second is that the law presumes intent from the commission of the underlying felony in violation of Mullaney v Wilbur ( 421 U.S. 684, supra), and Sandstrom v Montana ( 442 U.S. 510).

At common law intent to kill was not an element of felony murder ( Commonwealth v Redline, 391 Pa. 486, 493-495; State v Doucette, 143 Vt. 573, 577-580). The rule has been severely criticized by many commentators (12 N.Y. L Forum 565, 586-590; 33 Fordham L Rev 173, 196-199; 51 Ky LJ 59, 75-76; 65 Colum L Rev LQ 1496, 1499; LaFave Scott, Criminal Law, p 560). The rule has also been severely criticized by various courts ( People v Aaron, 409 Mich. 672; 13 ALR4th 1180; Commonwealth ex rel. Smith v Myers, 438 Pa. 218; State v Doucette, 143 Vt. 573, supra; People v Dillon, 34 Cal.3d 441). The criticism centers around the fact that, under modern penology, a person should only be responsible for his mens rea, and felony murder has no mens rea. As a result of the criticism, Hawaii, Kentucky and England (the originators of the felony murder doctrine) abolished the felony murder doctrine (see State v Aaron, 409 Mich. 672, supra; State v Doucette, 143 Vt. 573, supra). Some courts viewing the felony murder doctrine as harsh have read into their particular statute a statutory element of "malice" or "malice aforethought" ( Commonwealth ex rel. Smith v Myers, 438 Pa. 218, supra; Evans v State, 28 Md. App. 640, affd 278 Md. 197; State v Galoway, 275 N.W.2d 736 [Iowa]; Grant v State, 60 Tex Crim Rep 358; State v Millette, 112 N.H. 458; Commonwealth v Watkins, 375 Mass. 472; People v Aaron, supra; State v Doucette, supra).

Justice White, writing for a majority of the Supreme Court in Enmund v Florida ( 458 U.S. 782) stated that the lack of the element of intent in felony murder is a major factor in determining whether the death penalty imposed upon a nonshooter is violative of his Eighth Amendment right to be free from cruel and unusual treatment. Indeed, Justice White, in a concurring opinion in Lockett v Ohio ( 438 U.S. 586) held that the lack of the element of intent in felony murder rendered the death penalty, even for the actual shooter, violative of the Eighth Amendment (cf. p 614, n 2, Blackmun, J., and pp 635-636, Rehnquist, J., dissenting, taking opposite view). Nonetheless, Justice White stated:

"Under those circumstances the conclusion is unavoidable that the infliction of death upon those who had no intent to bring about the death of the victim is not only grossly out of proportion to the severity of the crime but also fails to contribute significantly to acceptable or, indeed, any perceptible goals of punishment.

"This is not to question, of course, that those who engage in serious criminal conduct which poses a substantial risk of violence, as did the present petitioners, deserve serious punishment regardless of whether or not they possess a purpose to take life. And the fact that death results, even unintentionally, from a criminal venture need not and frequently is not regarded by society as irrelevant to the appropriate degree of punishment" (p 626).

Justice White thus recognized that imposing punishment was proper but felt that imposing the death penalty was improper.

This court, however, does not have the liberty to interpret the statute as requiring intent, or "malice" or "malice aforethought". The Court of Appeals and the Appellate Division have clearly stated that these are not elements of the New York statute ( People v Berzups, 49 N.Y.2d 417; People v Marwig, 227 N.Y. 382, 387; People v Murray, 92 A.D.2d 617; People v Jones, 81 A.D.2d 22, 45). Thus, in New York, intent to kill is not an element of felony murder.

All the courts which have addressed this issue have ruled that the lack of the element of intent does not violate due process of law ( People v Root, 524 F.2d 195, 196-197, cert den 423 U.S. 1076; Commonwealth v Redline, 391 Pa. 486, 491-493, supra; Brown v State, ___ Ind ___, ___, 448 N.E.2d 10, 15; People v Dillon, 34 Cal.3d 441, supra). The rationale was aptly stated in People v Root ( supra), where the court said: "Nothing in the United States Constitution deprives legislatures of the power to impose upon those who kill their victims in the course of inherently dangerous felonies the same sanctions they choose for those who kill their victims after meditation sufficient to satisfy the jurisdiction's definition of first-degree murder" (p 197). It is for the Legislature and not for the courts to determine the proper elements of felony murder. Similar thoughts were expressed by the California Supreme Court in People v Burton ( 6 Cal.3d 375, 388) where the court said: "This court has reiterated numerous times that `The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.' ( People v. Washington (1965) 62 Cal.2d 777, 781 [ 44 Cal.Rptr. 442, 402 P.2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof." The court therefore finds that the lack of the element of intent in felony murder does not violate due process of law or equal protection.

The second due process argument is that the law conclusively presumes intent from the commission of the underlying felony. It is argued that this violates the principle set forth by the United States Supreme Court in Mullaney v Wilbur ( 421 U.S. 684, supra) and Sandstrom v Montana 442 U.S. 510, supra). In New York, "`the malicious and premeditated intent [is] 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'" ( People v Nichols, 230 N.Y. 221, 227). To put it another way, "in felony murder the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder" ( People v Berzups, 49 N.Y.2d 417, 427, supra).

The courts which have addressed this issue universally held that notwithstanding this "presumption" the statute is constitutional ( People v Sturgis, 86 A.D.2d 775; People v Root, 524 F.2d 195, 197-198, cert den 423 U.S. 1076, supra; Westberry v Mullaney, 406 F. Supp. 407, 415-417, affd sub nom. Westberry v Murphy, 535 F.2d 1333, cert den sub nom. Westberry v Oliver, 429 U.S. 889; State v Sims, ___ W Va ___, ___, 248 S.E.2d 834, 841; State ex rel. Peacher v Sencindiver, ___ W Va ___, ___, 233 S.E.2d 425, 427; State v Wanrow, 91 Wn.2d 301, 309-310; State v Bradley, 210 Neb. 882, 883-884; Commonwealth v Moran, 387 Mass. 644; James v State, 637 P.2d 862, 865 [Okla]; State v Nowlin, 244 N.W.2d 596, 604-605 [Iowa]; People v Dillon, 34 Cal.3d 441, 472-473, supra; State v Womble, 292 N.C. 455, 457-459). The rationale of these decisions is that since intent is not an element of the crime in reality there is no presumption of intent. Other courts hold their statute constitutional because the presumption is a rule of law and not a true presumption ( State v Swift, 290 N.C. 383, 406-408; Gore v Leeke, 261 S.C. 308; People v Dillon, supra, pp 474-475).

For the reasons stated, the court finds that subdivision 3 of section 125.25 Penal of the Penal Law does not violate due process of law.

EQUAL PROTECTION

Defendant argues that his rights under the equal protection of law have been violated because the New York statute only specifies certain felonies as underlying felonies for felony murder, while other felonies cannot be used as underlying felonies. Prior to the enactment of the current felony murder statute, all felonies could be used as underlying felonies ( People v Gladman, 41 N.Y.2d 123, 128; People v La Marca, 3 N.Y.2d 452, 465; People v Wood, 8 N.Y.2d 48, 51, n 2; for a statutory history of the New York statutes, see 20 Cornell LQ 288, 292-294). In People v Fonseca ( 36 N.Y.2d 133, 136), the court explained the current felony murder statute: "Formerly, the felony murder statute was unusually broad and all embracive. Its application in some cases, especially nonviolent felonies where an accidental or not reasonably foreseeable fatality occurred, was exceptionally harsh. The change from the former law was deliberate, its effect ameliorative, and brought the law of felony murder into line with that in the vast majority of other jurisdictions by specifically limiting its application to felonies involving violence or substantial risk of serious injury and death. (See Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 125.25; see, also, People v. Bornholdt, 33 N.Y.2d 75, 85.)"

It is clear that the New York Legislature has determined that only felonies involving violence or substantial risk of serious injury or death should provide a basis for felony murder. This provides the rational basis for distinguishing between the enumerated felonies and the nonenumerated felonies. It is the concept of the inherently dangerous felonies that has led other jurisdictions to uphold the constitutionality of distinguishing between different felonies ( Commonwealth v Matchett, 386 Mass. 492; James v State, 637 P.2d 862, 865 [Okla], supra; State v Harrison, 90 N.M. 439, 441-443; State v Thompson, 280 N.C. 202, 211; Gore v Leeke, 261 S.C. 308, supra; Osborn v State, 672 P.2d 777, 794 [Wyo]; State v Crump, 232 Kan. 265; see the discussion in Ann., 50 ALR3d 397).

It cannot be doubted that robbery is a crime involving violence or substantial risk of serious injury ( People v Santiago, 62 A.D.2d 572, 579, affd 48 N.Y.2d 1023). Defendant is charged with a homicide committed during the course of and in furtherance of a robbery. There is, therefore, as to him a logical basis upon which to impose criminal sanctions. Defendant's equal protection of the law right has not been violated.

In summary, as was stated in State v Goodseal ( 220 Kan. 487, 493-494): "The felony murder rule represents a long standing policy of this state. We have already indicated its rationale — to furnish an added deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a foreseeable risk of death. `The legislature, acting in the exercise of the police power of the state, is empowered to enact measures in furtherance of the public welfare and safety, and its enactments in such areas are not to be judicially curtailed where they reasonably relate to the ends sought to be attained. Classification honestly designed to protect the public from evils which might otherwise arise are to be upheld unless they are unreasonable, arbitrary or oppressive' ( State v. Weathers, 205 Kan. 329, Syl. para. 1 2, 469 P.2d 292). The felony murder rule, designed as it is to protect human life, represents sound public policy, is reasonably related to the end sought to be accomplished and is not constitutionally impermissible."

The court finds that there is nothing unconstitutional in the felony murder doctrine in New York.

The motion is denied in all respects.