In thе two first degree murder convictions before us, we address the question of what makes an offense lesser included, and hence dismissible as an inclusory concurrent count.
People v Rodriguez
Defendant Rodriguez lived with his family in the same Queens аpartment building as the victim. Rodriguez apparently harbored a grudge against the victim, believing that she was responsible for his family’s eviction. After his accomplice removed a fan from the victim’s kitchen window, Rodriguez entered her apartment. When she discovered him, he pulled out a knife and stabbed her 13 times, killing her.
Rodriguez was convicted of first degree murder under Penal Law § 125.27 (1) (a) (vii) (intentional felony murder) and two counts of second degrеe murder under Penal Law § 125.25 (1) and (3) (intentional murder and felony murder, respectively), as well as first degree burglary, criminal possession of a weapon in the fourth degree and criminal possession of stolen property in the fifth degree. Citing CPL 300.30 (4), the Appellate Division modified by dismissing the two second degree murder counts as inclusory concurrent counts of the first degree murder count and otherwise affirmed (
People v Miller
Defendant Miller accosted a man and a woman who were getting into a car, apparently after they had bought drugs. Threatening them with a gun, he demanded drugs and jewelry, and grew angry when the woman insisted she had nothing to give. He then shot the man in the head, killing him, and ran.
Like Rodriguez, Miller was convicted of murder in the first degree under Penal Law § 125.27 (1) (a) (vii) and two counts of second degree murder under Penal Law § 125.25 (1) and (3). He was also convicted of robbery in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second and third degrees. The Appellate Division аffirmed and Miller appeals. We now modify and dismiss the two second degree murder convictions as inclusory concurrent counts.
The Appellate Division routinely modifies convictions by dismissing inclusory concurrent counts.
“With respect to inclusory concurrent counts, the court must submit the greatest or inclusive count and may or must . . . also submit, but in the alternative only, one or more of the lesser included counts. A verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted, but not an acquittal thereon . . .” (emphasis added).
In both appeals, the People cоntend that the second degree murder counts are not lesser included under the first degree murder convictions. They argue that because first degree murder (Penal Law § 125.27 [1] [a] [vii]) is a class A-I felony, it is not “greater” than second degree intentional murder (Penal Law § 125.25 [1]) or felony murder (Penal Law § 125.25 [3]), both of which are also classified as A-I felonies. That being so (the argument goes), the two second degree murder counts cannot be inclusory concurrent counts of first degree murder within the meaning of CPL 300.40.
We disagree, as did the Appellate Division in Rodriguez. CPL 300.30 (4) provides, in part, that “Concurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter аre all lesser offenses included within the greater.” It would be inapt to read the “greater” with reference only to the offenses’ A-I felony classification. Most importantly, the crimes here are unequivocally of different degrees and carry considerably different sen
That would be the end of the matter were it not for the People’s argument pursuant to the “imрossibility” doctrine of CPL 1.20 (37): “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser includеd offense’ ” (emphasis added).
Designed as a capital murder statute, Penal Law § 125.27 begins with intentional murder as its predicate. The statute goes on to list 13 aggravating factors (including subparagraph [vii], which generally tracks felony murder under Penal Law § 125.25 [3]), any one of which raises the crime to first degree murder. We have called it intentional “murder ‘plus’ ” (People v Cahill,
The felony murder paradigm, however, lacks this simplicity, and here the prosecution has made a novel аrgument. Intentional felony murder is felony murder based on an intentional killing. But there is a quirk: the felonies predicating intentional felony murder under section 125.27 (1) (a) (vii) are not identical to those underlying ordinary felony murder under section 125.25 (3). The two statutes are similar in that both deal with most of the same predicate felonies (with slight variations in degree),
In People v Glover (
We disagree. Although the People’s premise may have merit in the most technical sense, their conclusion does not follow in this case, where the higher crime can be committed in alternative ways, through different conduct. In People v Green (
In this instance, given the nature of the intentional felony murder statute, our holding falls comfortably within thе concepts laid out in Green and Glover. Indeed, by affirming the Appellate Division in Rodriguez and modifying in Miller, we
In Glover, we changed the rule and held that “impossibility” refers not only to the facts of the case but tо whether it is, in theory, impossible to commit the greater crime without by the same conduct committing the lesser (Glover,
In the appeal before us, however, the structure of the intentional felony murder statute leads us to conclude that felony murder is a lesser-included crime under intentional felony murder. Were wе to rule otherwise, it would mean that if a defendant is charged in a single-count intentional felony murder indictment, neither the prosecution nor the defense could ever have the jury consider felony murder. This would improрerly tie the hands of the jury, the court and the parties, and we are unwilling to extend the impossibility doctrine that far.
Here, Rodriguez was charged with burglary and Miller with robbery as the underlying felonies for felony murder. That someone else could conceivably commit intentional felony murder predicated upon another form of felonious conduct (without committing standard felony murder) does not alter the greater-lesser relationship between intentional felony murder based on burglary or robbery and standard felony murder based on burglary or robbery.
Lastly, defendant Miller’s claim of error with regard to the court’s charge to the jury is unpreserved and his remaining cоntentions are without merit. Accordingly, the order of the Appellate Division in People v Rodriguez should be affirmed, and
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and R.S. Smith concur; Judge Read taking no part.
In People v Miller: Order modified by vacating defendant’s conviction of two counts of murder in the second degree аnd remitting to Supreme Court, New York County, for resentencing and, as so modified, affirmed.
In People v Rodriguez: Order affirmed.
Notes
. There are dozens of such cases. A sampling of some of the more recent includes People v Crumbs (
. People v Weathersby (
. For example, second degree felony murder (Penal Law § 125.25 [3]) includes as predicate crimes robbery, burglary and arson in the first degree, whereas Penal Law § 125.27 (1) (a) (vii) names those crimes in the second degree as well. Penal Law § 125.25 (3) includes second degree escape, whereas Penal Law § 125.27 (1) (a) (vii) does not.
. E.g., People ex rel. Gray v Tekben,