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March 10, 1976

UNITED STATES of America ex rel. Paul ROBINSON, Petitioner,
WARDEN, AUBURN CORRECTIONAL FACILITY, STATE OF NEW YORK, and District Attorney, Kings County, State of New York, Respondents

The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

 MISHLER, Chief Judge.

 Petitioner was convicted of the crimes of felony murder, attempted robbery in the first degree and attempted grand larceny. N.Y. Penal L. §§ 125.25(3), 110.00/160.15 and 110.00/155.30 (McKinney 1975), in Supreme Court, Kings County, in 1973. Petitioner was sentenced to concurrent terms of fifteen (15) years to life on the murder charge, ten (10) years on the attempted robbery charge and a conditional discharge on the attempted grand larceny charge. Petitioner now seeks a writ of habeas corpus from this court, claiming that the trial court's charge violated the defendant's fifth and fourteenth amendment right to due process by requiring the defendant to prove his innocence on the felony murder charge. The petition claims that: (1) an erroneous notion was conveyed to the jury when the court instructed them that the defendant had interposed an affirmative defense and that in so doing, the petitioner had admitted his guilt to the underlying felony; and (2) by "in essence . . . declaring that the People had proved the charge of murder, which shifted the burden upon the defendant to come forth and testify to prove his innocence," the court relieved the state of its obligation to prove all the essential elements of the crime beyond a reasonable doubt as required in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). For the reasons stated below, the court denies the writ and dismisses the petition.


 The facts of petitioner's criminal activity which were proven at trial, interpreted in the light most favorable to respondents, *fn1" were as follows. *fn2" On the night of the crime, the murder victim, Germaine Phillips, and her boyfriend, Alberto Greene, were in Lincoln Terrace Park. Petitioner and two other men, Gargo and George, entered the park and walked past Phillips and Greene, then turned around and surrounded the couple. Wielding a knife, one of the men (not petitioner) ordered Greene to empty his pockets. Greene said he had no money. The other man (not petitioner) held a gun to Greene's stomach. When Greene attempted to escape from the robbers he was partially blocked by petitioner. The man with the gun fired and Phillips was fatally wounded.

 Petitioner testified in his own defense at the trial. He stated that his walking in the park with Gargo and George was coincidental; that his presence in the park at the time and place they attempted the robbery was fortuitous and unpredictable; that he never discussed committing a robbery with Gargo and George; and that he did not know that Gargo and George intended to commit a robbery nor that they were armed.


 Petitioner appealed his conviction to the Appellate Division of the Supreme Court, Second Judicial Department, People v. Robinson, 43 A.D.2d 908, 351 N.Y.S.2d 647 (2d Dept. 1974) (aff'd. without opinion), and to the New York Court of Appeals, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1974). Petitioner's main contention on appeal was that the judge's charge mistakenly informed the jury that petitioner had asserted the affirmative defense to felony murder, and that the effect of the charge was to mislead the jury on the prosecutor's burden of proving petitioner's guilt. *fn3"

 Petitioner's conviction was reviewed by New York's highest appellate court, and he has therefore exhausted his state remedies and is properly before this court, 28 U.S.C. § 2254.


 "A jury charge in a state trial is normally a matter of state law and is not reviewable on federal habeas corpus absent a showing that the alleged errors were so serious as to deprive defendant of a federal constitutional right. Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); Schaefer v. Leone, 443 F.2d 182 (2d Cir.), cert. denied, 404 U.S. 939, 92 S. Ct. 277, 30 L. Ed. 2d 251 (1971). . . ." United States ex rel. Smith v. Montayne, 505 F.2d 1355, 1359 (2d Cir. 1974). The judge's charge, here, though at times confusing, did not constitute a transgression of fundamental constitutional guarantees. United States ex rel. Colon v. Follette, 366 F.2d 775 (2d Cir. 1966); Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960). The opportunity for clarification was offered defendant *fn4" after the charge was given and before the jury started to deliberate. *fn5" The claim of error was waived. United States ex rel. Satz v. Mancusi, 414 F.2d 90 (2d Cir. 1969); United States v. Nasta, 398 F.2d 283, 285 (2d Cir. 1968).

 The New York felony murder statute, N.Y. Penal Law § 125.25(3) (McKinney 1975), *fn6" gives ". . . a non-killer defendant of relatively minor culpability a chance of extricating himself from liability for murder, though not, of course, from liability for the underlying felony." *fn7" The conditions under which a non-killer defendant may extricate himself are described in the statute as an affirmative defense. Petitioner's claim, based on the judge's use of the phrase "affirmative defense", therefore, indirectly challenges the constitutionality of the statute by reference to Mullaney, supra. Mullaney held that a Maine statute requiring a defendant charged with murder to prove that he acted in the heat of passion on sudden provocation in order to reduce the charge to manslaughter was a violation of due process, in that it relieved the prosecution from proving beyond a reasonable doubt an essential element of the crime of murder, i.e., malice. *fn8"

The felony murder doctrine had its origin in the common law during an era when nearly all felonies were punishable by death. Because this often resulted in a barbaric application, the doctrine passed through a series of judicial and later legislative restrictions and limitations. However, both at common law and under the New York statute (supra), a felonious homicide is made murder in the first degree by operation of the legal fiction of transferred intent, which thereby characterizes the homicide as committed with malice prepense. It is the malice of the underlying felony that is attributed to the felon. Thus, a felony murder embraces not any killing incidentally coincident with the felony, but only those committed by one of the criminals in the attempted execution of the unlawful end. Although the homicide itself need not be within the common design, the act which results in death must be in furtherance of the unlawful purpose.
In other words, in order for a felon to be guilty of the homicide, the act (as in agency) must be "either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by someone acting in concert with him or in furtherance of a common object or purpose. . . ." If the lethal act is in furtherance of their common purpose, the accomplice is guilty even ...

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