People v. Hallett

71 A.D.2d 815, 419 N.Y.S.2d 397, 1979 N.Y. App. Div. LEXIS 13045

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1979
• Status: Published

Opinions

—Judgment affirmed. Memorandum: This case involves the shooting death of Robert Hallett, his second wife, Grace, and their younger daughter, Ann, in the basement of their home in the Town of Busti. The appellant, Susan Hallett, is the daughter of Robert Hallett by his first wife; codefendant Richard Parish was Susan’s paramour. The defendants, along with Aaron Hale, were indicted by three separate indictments, one for each of the victims. Each indictment charged one count of intentional murder and one count of felony murder accusing the defendants of the crime of burglary as the underlying crime in the felony murder count. Hale’s trial was severed. He then pleaded guilty to manslaughter, testified for the People, and was sentenced to probation. At the close of the trial the counts of intentional murder against appellant were dismissed. The jury found Parish guilty of manslaughter in the first degree and appellant guilty "as charged”. The critical issue presented on this appeal is whether the jury’s verdicts convicting Parish of manslaughter and acquitting him of felony murder is repugnant to its verdict finding appellant guilty of felony murder. The jury acquitted Parish of felony murder by failing to render a verdict on that count (CPL 310.50, subd 3). The court charged the jury that extreme emotional disturbance is a- defense to intentional murder. The elements of first, second and third degree burglary were included in the charge on felony murder. Burglary was described as an "intent crime”. The jury was instructed, albeit erroneously (see People v Patterson, 39 NY2d 288, affd 432 US 197; and see People v Edwards, 64 AD2d 201), "that if you find that it has been proven by the People, beyond a reasonable doubt that he killed these people deliberately, but it has been established to your satisfaction, by a fair preponderance of the believable testimony, that his mind was so beclouded by dope, or intoxicant, that he was unable to form an intent to kill, your verdict must be 'manslaughter in the first degree’ ”. Further, they were instructed that if the prosecution failed to prove that Parish intentionally participated in the burglary they must render a verdict of "not guilty of the felony murder count”. Applying these instructions by the court, which we consider to be the law of the case (People v Gibson, 65 AD2d 235), the jury could have found that Parish lacked the requisite intent to commit the underlying felony of burglary. A person is guilty of felony murder, inter alia, when acting alone or with another he commits burglary during which he, "or another participant”, causes the death of a person (Penal Law, § 125.25, subd 3). The jury’s acquittal of Parish of felony murder does not imply that the jury also found that he was not a "participant” in the burglary so as to render repugnant its verdict convicting appellant of felony murder. Implicit in the verdicts is the finding that both defendants were present in the house at the time of the burglary and that Parish committed the homicides. Under the instructions of the court the jury was obliged to consider the "extreme emotional disturbance” defense, and it is apparent that the jury conceivably related this defense to Parish’s ability to form an intent to commit the underlying felony. Failure on the part of Parish to form an intent to commit burglary does not remove this crime as the basis for appellant’s conviction for felony murder. She would nonetheless be guilty of felony murder if the other "participant” with her, who actually committed a homicide during a burglary, was a non-suijuris infant or a mentally defective person incapable of forming an intent (see People v Porter, 54 NYS2d 3). A further analogy may be drawn to the provisions of subdivision 1 of section 20.05 of the Penal Law which provides that accessorial liability may not be avoided based upon the lack of the requisite mental state required for the commission of the offense on the part of the other person engaged in the criminal conduct. Parish’s inability to form the specific intent to commit the burglary is irrelevant to the issue of appellant’s guilt. The "difference between these seemingly inconsistent verdicts can be reconciled by a 'rational theory’ ” (People v Gibson, supra, p 239). Appellant’s pretrial motions to dismiss the indictment based on the insufficiency of the Grand Jury minutes and for a severance were denied.' The validity of an order denying the insufficiency motion is not reviewable upon an appeal from an ensuing judgment of ponviction based on legally sufficient evidence (CPL 210.30, subd 6). Appellant argues that the failure to dismiss the first count of the indictment charging her with intentional murder (Penal Law, § 125.25, subd 1) until the conclusion of the trial resulted in reversible error because a joint trial would not have occurred had the defendants not been jointly charged with every offense alleged in the single indictment (CPL 200.40, subd 1). However, appellant was not prejudiced by the assertion of the additional count of intentional murder solely against her codefendant. The same "transaction” was involved and evidence of both offenses "would have been properly before the jury as a natural part of the narrative of events” (People v Lopez, 59 AD2d 767, 768). The failure to dismiss the first count of the indictment does not warrant the retrospective review of the denial of the motion for severance under these circumstances (cf. People v La Belle, 18 NY2d 405, 409; People v Cavanaugh, 48 AD2d 949, 950). Finally, we have carefully examined the record with respect to the contention that a conflict of interest exists by reason of the Public Defender’s representation of the appellant and Aaron Hale. We find that the trial court carefully explained the conflict in the presence of appellant and Hale with their counsel present following which, we find, that appellant made a knowing and intelligent waiver (cf. People v Macerola, 47 NY2d 257). Other issues raised on this appeal have been examined and found to be without merit. All concur, except Schnepp, J., who dissents and votes to reserve decision and remit the matter for a hearing in accordance with the following memorandum.