OPINION OF THE COURT
In this felony murder prosecution, defendant concedes his involvement in the underlying felony, a gunpoint robbery. According to his trial testimony, he and several others met at an uptown hotel to arrange a robbery of acquaintances of theirs who were operating a shooting gallery for heroin in a nearby apartment. They completed their plans and proceeded to the apartment, armed with at least two loaded guns. They ordered the occupants to strip, tied them up, blindfolded them and removed their money and clothing.
Defendant states that after he left the apartment, as he was going down the stairs, his female accomplice shot the owner of the apartment, one Rudolph Connors, who happened to be her former lover. He claims that she was motivated by resentments stemming from this prior relationship, and that the killing was therefore not connected to the robbery.
Defendant does not argue, nor could he, that the fact that he was not proven to be the actual shooter absolves him of the felony murder charge. Having admitted his participation in the robbery, defendant would ordinarily be responsible for the murder of Mr. Connors even if he lacked the specific intent to cause his death and did not personally contribute to the homicide. He claims, however, that in the instant case the homicide was not sufficiently connected to the felony to invoke the provisions of the felоny murder statute. At issue is the meaning (if any) of the phrase “in furtherance of the robbery” as used in the felony murder statute. This question does not appear to have been answered in any reported decisions.
Subdivision 3 of section 125.25 of thе Penal Law states that one who causes the death of another in the course of
The felony murdеr rule operates under the fiction of transferred intent. Even when an individual does not intend to kill, when a death occurs in the course of a felony, intent to perpetrate a felony is transferred to the homicide. (People v Enoch, 13 Wend 159; People v Nichols,
Accidental deaths during felonies werе also not encompassed within the original common-law rule (Fletcher, Rethinking Criminal Law, § 4.4, p 292). Although a number of jurisdictions have retained the common-law rule (see State v Schwensen, 237 Ore 506; United States v Heinlein, 490 F2d 725; State v Rounds, 104 Vt 442; State v Diebold, 152 Wash 68; State v Opher, 38 Del 93), others have expanded the application of the fеlony murder doctrine to include accidental deaths. (See, e.g., Rex v Jarmain, 1 KB 74 [1946]; State v Thorne,
Although the New York cases have not spoken directly to this issue (but cf. People v Lozano, supra), certain specific exceptions to rigid application of the felony murder rule have been created.
For example, in People v Wood (
The Court of Appeals affirmed the lower court’s dismissal of the felony murder counts of the indictment, holding that even though the deaths were the foreseeable consequence of the underlying assault, the defendant could not be held responsible for the felony murder.
“Thus, a felony murder embraces not any * * * [murder] incidentally coincident with the felony *** but only
“[t]he act * * * must be ‘*** committed *** in furtheranсe of a common object or purpose.’” (People v Wood, supra, pp 51-52; emphasis in original.)
Even when the homicide is committed by one of the persons engaged in the underlying felony, if that person acts for a private purpose unrelated to the felony, the remаining members of the group are not liable for the murder. (People v Elling,
In the instant case defendant claims that Rudolph Connors was not shot in furtherance of the felony, but for either the private motive of the shooter or for totally gratuitous purposes. He argues that in either case the shooting could not be said to be “in furtherance” of the robbery. If the shooter killed for some personal reason and merely took advantage of the robbery to carry out his vеndetta, the killing would not be. attributable to defendant as an accomplice because it would have been outside the scope of the felony (People v Elling, supra; People v Blake, supra).
The killing of Rudolph Connors, a single witness out of the many who were well acquаinted with the robbers, did not weaken the identification of the defendant and his accomplices as the perpetrators of the robbery (see, e.g., People v La Belle,
Although these arguments are not completely illogical, they amount to no more than speculation, and/or criticism of the criminal expertise of the robbers. There is no evidence in the record before the court of a private motive to kill Rudolph Connors.
The defendant also argues that, even if no private motive existed, the fact that the killing was senseless in that it did not advance the robbery or the subsequent escape removes it from felony murder liability, which requires a killing “in furtherance” of the felony.
This equation of “in furtherance” with “in aid of” or “in advancement of” has the virtue of linguistic accuracy, but is at odds with both the history and purpose of the “in furtherance” requirement. The phrase can best be understood as the third logical link in the triad which must be present to connect a felony with a consеquent homicide. Just as “in the course of” imposes a duration requirement, “causes the death” a causation requirement, “in furtherance” places a relation requirement between the felony and the homicide. More than the mere coincidence to time and place (People v Wood,
It is for this reason that the distinction between personal motive and lack of motive is crucial. In the case of murder for personal motive, the homicide shares with the felony only coincidence of time and place; the killer takes advantage of thе circumstances of the felony to carry out a personal vendetta which he might well have carried out at any time. By definition, the murder was not within the common plan or execution. In that case the personal motive of the killer makes it solely his own act and responsibility and removes the homicide from the compass of the felony which was, to that point, common to all the accomplices. In other words, a private motive breaks thе nexus between felony and killing. On the other hand, where the killing is gratuitous, there is no private motive which personalizes the act to the actor and so makes it his single responsibility. We cannot say that the killing was outside the ambit of the felоny or unrelated to it. It may not have advanced it, but it was logically an integral aspect of it. The nexus between killing and felony still exists. There is no reason, therefore, to restrict criminal responsibility to the shooter alone, and it is not inappropriate that the other participants in the felony share the consequences of the senseless act as they share liability for the other criminal acts committed during the felony.
Defendant was a willing and active participant in the underlying gunpoint robbery. He was therefore accountable as if principal for the acts of his accomplices which were within the compass of the crime. More than mere concomitant of the robbery, the murder of Rudolph Connors was the intentional act of an accomplice, perpetrated without compunction or reason and without personal motive, during the course of the crime. Growing оut of the robbery, the homicide was a constituent component of the felony. Liability, for this reason, rests on defendant as well as the shooter. Accordingly, defendant’s motion is denied.
Notes
. In People v Lozano (
. Defendant does not contend that the homicide did not take place “in the course” of the robbery. Although the meaning of “the course of” a felony was in dispute in New York for well over half a century, as the courts attempted to define when a felony terminates (see, e.g., People v Giro,
. The jury was specifically instructed that “the People do have the burden of proving beyond a reasonable doubt that the killing occurred in furtherance of the robbery or in the immediate flight therefrom and not for a private purpose of one of the participants in the robbery.”