People v. Shedrick

106 A.D.2d 895, 483 N.Y.S.2d 497, 1984 N.Y. App. Div. LEXIS 21806

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was convicted after a jury trial of two counts of murder, second degree (felony murder), and one count each of burglary, first degree, and conspiracy, fourth degree. Among other arguments on appeal she contends that the evidence established as a matter of law all of the elements of the affirmative defense to felony murder under subdivision 3 of section 125.25 of the Penal Law. We disagree. There was proof that defendant made incriminating statements which could be interpreted as admissions that she herself had participated in the killings. In other statements she admitted that she and the other participants went to the victims’ home and then left and returned with the tire iron and that later she hid it under the bed and then disposed of it to avoid its discovery by the police. Other statements of defendant reflect such a detailed knowledge of the scene of the crime and of certain particulars of the killings as to suggest that she may have been present. These statements together with proof that the tire iron came from the trunk of defendant’s car and that she gave the key to a participant who opened the trunk and removed the tire iron, and with evidence of her knowledge of the prior bad acts and violent propensities of Robert Shedrick, her brother and a participant, provide a sufficient basis for the jury to conclude that defendant failed to prove by a preponderance of the evidence essential elements of her affirmative defense, i.e., that she had no reasonable ground to believe that any other participant was armed or intended to engage in conduct likely to result in death or serious physical injury (Penal Law, § 125.25, subd 3, pars [c], [d]).

Defendant’s contentions respecting the claimed invalidity of the Steuben County Grand Jury and petit jury panels were not preserved for review (see CPL 270.10, subd 2; People v Prim, 40 NY2d 946, 947; People v Consolazio, 40 NY2d 446, 455, cert den 433 US 914). In any event, we find the contentions to be without merit (see People v Shedrick, 104 AD2d 263). We have examined the other points raised on appeal and find no basis for reversal. (Appeal from judgment of Steuben County Court, Purple, J. — murder, second degree.) Present — Hancock, Jr., J. P., Callahan, Green, O’Donnell and Moule, JJ.