People v. Haims

171 A.D.2d 878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1991
• Status: Published

Opinions

Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered May 10, 1984, convicting him of murder in the second degree, manslaughter in the second degree, and attempted rape in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant admitted that he killed the victim by beating her over the head with a shillelagh. He admitted that after having spent some time with the victim at her parents’ home, he began to fantasize about compelling the victim to submit to sexual intercourse. As the urge to fulfill this fantasy became greater, the defendant decided to commit a forcible rape.

The defendant confessed that he prepared to rape the victim as she was taking a shower. He approached the master bedroom, arming himself with the shillelagh, which he intended to use as an instrument in the enactment of his violent fantasy. He lay in wait in a hall alcove, saw the victim come out of the shower, approached her from behind, and then began to strike her repeatedly over the head. He continued unrelentingly, eventually causing the injuries which led to the victim’s death, and only stopped because she was unconscious and covered with blood.

The defendant now argues that his savage beating of the victim was not "in the course of [or] in furtherance of’ his confessed attempt to rape her, so that the jury’s verdict with respect to felony murder cannot stand (Penal Law § 130.35 [1]; §§ 110.00,125.25 [3]). We disagree.

Penal Law § 130.35 (1) provides that

"[a] male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * *

"[b]y forcible compulsion”.

Penal Law § 110.00 provides that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime”.

In the present case, it cannot seriously be disputed that the defendant formed an intent to commit a rape in violation of Penal Law § 130.35 (1). Nor can it be disputed that by taking up a club, and by then using it to beat his victim into submission, he "engage[d] in conduct which tend[ed] to effect the commission” of the intended rape (Penal Law § 110.00). Therefore, there is no serious question that the defendant committed an attempted rape (see, Penal Law § 130.35 [1]; § 110.00; see also, People v Pereau, 64 NY2d 1055, affg 99 AD2d 591; People v Bruce, 162 AD2d 604; People v Graham, 151 AD2d 979; People v Troy, 119 AD2d 880).

The defendant’s argument is that the evidence left the jury no alternative but to conclude that, prior to inflicting the injuries which actually killed the victim, he had "abandoned the idea of attempting to rape [the victim] in favor of an uncontrolled spasm of violence”. Thus, the defendant argues that the homicide was not "in furtherance of” the attempted rape (Penal Law § 125.25 [3]), so that he is innocent of felony murder.

We have no hesitation in accepting the defendant’s characterization of his conduct as being an "uncontrolled spasm of violence”. However, we cannot accept the argument that, as a matter of law, the defendant’s intent to commit rape (i.e. forcible sexual intercourse) had necessarily abated once his "spasm of violence” had begun. This argument rests ultimately on the premise that the intent to compel another person to submit to sexual intercourse is inconsistent with whatever state of mind it is that inclines a person such as the defendant to acts of excessive violence. We consider it more realistic to view the two mental states — intent to commit rape and intent to injure through violence — as entirely compatible.

We, therefore, cannot accept the premise, as our dissenting colleague in effect does, that at the time that the fatal injury or injuries were being inflicted, the defendant had necessarily abandoned all intent to carry out his perverted fantasy. Whether the sequence of events was such that the fatal injuries were inflicted after, rather than before, the defendant had abandoned his confessed intent to rape the victim (assuming that this intent was in fact abandoned at any point prior to the victim’s death) was clearly a question of fact for the jury. Unlike our dissenting colleague, we do not consider the jury’s resolution of this question of fact to be against the weight of the evidence.

We have examined the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Bracken, J. P., Hooper and Balletta, JJ., concur.