Opinion
No. 10476–2014.
05-20-2016
The PEOPLE of the State of New York v. Jeandro PEREZ.
Kenneth P. Thompson, District Attorney, Kings County, Brooklyn, for the People; Linda Hristova, of counsel. Lombardino & Nektalov, Richmond Hill, for Jeandro Perez.
Kenneth P. Thompson, District Attorney, Kings County, Brooklyn, for the People; Linda Hristova, of counsel.
Lombardino & Nektalov, Richmond Hill, for Jeandro Perez.
MATTHEW J. D'EMIC, J.
The defendant moves the court to dismiss counts one and two of the indictment, which charge Attempted Murder in the First Degree (P .L. §§ 110.00 and 125.27[1][a][vii] ), on the ground that these counts do not charge an actual crime; specifically, that there is no such crime as attempted felony murder.
The motion is denied.
It is true that case law holds that a charge of attempted felony murder in the second degree is not lawful since “an attempt requires an intent to commit a specific crime [and o]ne cannot attempt to commit an act which one does not intend to commit [citations omitted]” (People v. Hassin, 48 A.D.2d 705, 705 [2nd Dept.1975] ).
Felony murder in the second degree under P.L. § 125.25(3) is a strict liability crime. There is no requirement to intend to cause death but rather one must have intended to commit the underlying felony and during its commission the accused caused the death of a person who was not a participant in the felony. As the resulting death need not have been specifically intended and could have been unintended or even accidental, felony murder is not an intentional crime and it is a legal impossibility to attempt to commit an unintended result, in this case a death (see id.; see also, People v. Campbell, 72 N.Y.2d 602 [1988] —discussing these concepts in the context of a legally impossible attempted assault in the second degree).
However, in the matter at bar the charges are attempted felony murder in the first degree.
Felony murder in the first degree under P.L. § 125.27(1)(a)(vii) is distinguishable from felony murder in the second degree in that a defendant is guilty of felony murder in the first degree when “with intent to cause the death of another person, he causes the death of such person ... and (a) ... (vii) the victim was killed while the defendant was in the course of committing or attempting to commit ... robbery, burglary in the first degree or second degree, ... or in the course of ... immediate flight ... provided however, the victim is not a participant in one of the aforementioned crimes ...; and (b) the defendant was more than eighteen years old at the time of the commission of the crime [emphasis supplied].”
This definition is of an intentional crime, requiring specific intent, and there are no strict liability elements. Therefore, there can legally be an attempt to commit this crime.
Counts one and two of the indictment allege that the defendant, with the intent to cause the death of each of the two victims (towards whom he had fired shots, striking one and missing the other), attempted to cause the death of each while he was in the course of committing or attempting to commit robbery or in immediate flight thereafter.
Contrary to the defendant's contention, this court finds that these counts do not charge a legally impossible crime. Rather, an attempt to commit an intentional murder during the course of a felony (in this case, an attempted robbery of an appliance store), as here charged, is a cognizable crime (see also, People v. Barnes, 2007 WL 2814058, 2007 N.Y. Slip Op. 32427(U) [Sup.Ct., Kings County 2007], habeas corpus denied, 2009 WL 805131 [E.D.NY 2009] ); People v. Gabbidon, 172 Misc.2d 226 [Sup.Ct., Kings County 1997] ), and, accordingly, counts one and two may stand.
This constitutes the Decision and Order of the court.