Wednesday, October 22, 2008

Challenge to Facial Sufficiency of Accusatory Instrument Not Forfeited By Guilty Plea

In People v Lucas (2008 NY Slip Op 07948 [10/21/08]) the Court of Appeals rejected a broad reading of its holding in People v Cahill (2 NY3d 14 [2003], in which the Court had held that it was impermissible double counting to use the intent to kill to transform the criminal trespass into a burglary in the first degree and to then use the burglary in the first degree to elevate a murder in the second degree to a murder in the first degree. In Lucas the defendant argued that under Cahill the same killing during an abduction could not be the basis of a kidnapping in the first degree charge and a murder in the first charge based on a murder in furtherance of in the course of a kidnapping in the first degree. The Court rejected this argument, holding that
The problem in Cahill was the double counting of one criminal intent. We said that Cahill's "conviction cannot stand because the burglary carried no intent other than to commit the murder" (id. at 62 [emphasis added]). We explained that, in defining first degree murder — a crime which could make a defendant eligible for the death penalty — the Legislature required murder and "[a]n additional aggravating factor — murder 'plus'" (id. at 64). But where "the very same mens rea — the intent to kill" was used to define both the murder and the aggravating factor, the legislative goal of "narrowing rather than expanding the class of defendants eligible for the death penalty" had not been achieved (id. at 64-65). The gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant's crime has not been "aggravated" to first degree murder.

That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents — the intent to kill the victim and the intent to abduct him. The intent to abduct aggravated the crime of murder, and defendant is thus a member of that class of murderers whose crime is significantly worse than ordinary murder — "murder plus." It is of no moment that a factual circumstance other than defendant's intent — in this case, the victim's death — is an element of both the murder and the predicate felony. Cahill is satisfied by the showing of a second criminal intent.

Perhaps of more general interest, and certainly of greater help to defendants, is that the Court reaffirmed that an attack of the facial sufficiency of an accusatory instrument survives a guilty plea. Here, Mr. Lucas argued that the facts stated in the indictment do not constitute the crime of first degree murder. The Court held that
This argument attacks the facial sufficiency of the accusatory instrument, and so is not forfeited by defendant's guilty plea (People v Taylor, 65 NY2d 1, 5 [1985])...