*1 [878 554] NE2d 848 NYS2d York, of the State Respondent, of New John Taylor, Appellant.
Argued 10, 2007; September decided October
POINTS OF COUNSEL (Susan City Kevin York H. Doyle, Defender, M. New Capital counsel), J. Fisher I. Barry appellant. People Salomon and for [2004]) John voiding Taylor’s v LaValle NY3d 88 requires Favor, 254; v Mitch People death sentences. v 82 NY2d (People ell, 519; 213; 80 v 53 NY2d v Hob People People NY2d Pepper, son, Tennessee, 808; 479; 39 v US Arizona v NY2d 501 Payne 203; US v Ave. & 37th St. Rumsey, Corp., 467 Semanchuck Fifth Damiano, 331; 76 v 87 412; People Bing, 290 NY v NY2d People 10.) Elbaum, 82 477; NY2d Neck v NY2d Grace Plaza Great state, II. the death no functions this longer Since goals would further measurably any John execution not Taylor’s therefore constitute cruel and unusual punishment; would violate, well, and this common-law punishment State’s punishment. offenders the benefits of ameliorated principles granting (P Harris, 37; LaValle, 88; US v 3 NY3d v 465 eople Pulley 153; 238; US v 428 US Georgia, Gregg Georgia, Furman v 408 Florida, 584; 782; v v Coker 433 US Enmund 458 US Georgia, Arizona, 279; 639; McCleskey Kemp, Walton 497 US v 481 US v Oklahoma, 815; Hooks, 487 96 AD2d v US v Thompson People 1001.) Constitution, III. Under New York’s death penalty and, without compel constitutes cruel and unusual punishment interest, fundamental ling right state citizens deprives v and, thereby, equal (People life of due process protection. Video, 153; 428 US Furman 296; Georgia, P.J. 68 v Gregg NY2d 499; 238; v 408 US v 32 NY2d Wood Georgia, People Fitzpatrick, Smith, 41; Carolina, 280; US NY2d People son v 428 v 63 North LaValle, 88; v 3 NY3d 304; People Atkins 536 US Virginia, v Isaacson, Simmons, 44 NY2d 551; People 543 US v Roper v 511.) for Taylor’s first-degree Four of John six convictions IV for kill three Craig murder—those Godineaux to commanding victims Anita himself—were killing against Smith were evidence, and the command convictions weight of Mateo, 2 sufficient evidence. v by legally (People even supported Couser, v 631; People v AD2d NY2d 383; NY3d 258 94 People
131 Cahill, 14; 94 Rayam, 557; NY2d v 2 v People Ryan, NY3d People 497; 82 NY2d 307; Jackson v 443 v Virginia, People US Higgins, Davis, 607; Crum, 348; 5 NY2d v People People 272 NY v 718.) Blim, 17; NY2d People v 63 NY2d V Police and prosecu tors interrogated Taylor John even after his in a counsel pend ing robbery case informed them her representation covered arrest, new including matter, he Wendy’s should not be questioned. Because Taylor’s right to counsel thereby indelibly attached and a later “waiver” of counsel was obtained outside his lawyer’s presence, his subsequent confes sions Lennon, were admitted. v wrongly (People 243 AD2d 942; Burbine, West, 412; NY2d Moran v 475 US v People 370; Donovan, NY2d v People 148; People Garofolo, NY2d v 592; Pinzon, 46 NY2d 458; Gunner, v 44 NY2d v People People 226; Failla, 15 NY2d v 178; Schaeffer, v 117.) 448; People Byrne, 47 NY2d VI. Over repeated *3 objections motions, defense and mistrial the court a prosecu let tion psychologist testify extensively about accomplice Craig Godineaux’s difficult childhood and cognitive impairments. This evidence was irrelevant to determining Taylor’s John conduct state, or mental and a back door to unconfronted from hearsay Godineaux and his relatives. But the prosecutor used it to cast Godineaux as pathetic blameless, and and as comparatively sign the for the culpability killings—including “command” responsibility—to Taylor. v (Crawford 36; 541 US Washington, People Goldstein, 119; Couser, v 6 NY3d 631; v 94 NY2d People v People 81; 86 Cratsley, 304; NY2d Atkins v Virginia, 536 US Sandoval, Miller, v People 371; 34 People 543; NY2d v 39 NY2d Marx, v People 726; 305 AD2d v People 104; 87 AD2d Freshley, Primo, 351.) v People 96 VII. After NY2d God convicting Craig ineaux of murder for all Wendy’s advance to kill the intending victims, the prosecution argued the at John opposite Taylor’s trial: that Godineaux Taylor had no intent hurt until anyone killed two and victims told him to the shoot rest. Because prosecution employed contradictory argue its both to theory Taylor’s Godineaux must have acted at “command” and to heighten Taylor’s sentencing relative at the culpability hearing, this unethical tactic violated due reversal of process, requiring the command v Ed (People convictions and death sentences. wards, 754; 417; 274 La People People AD2d v 85 NY2d v Cabey, Belle, Torres, 405; 911; 18 AD2d v People NY2d v 153 People Godineaux, Couser, 631; 2 v 875; AD3d v 94 NY2d People People Santorelli, 1449; 412; NY2d v v 95 Drake 762 F2d Smith Kemp, 1045.) Groose, Calderon, 1045; 205 F3d 120 F3d v Thompson 132 prosecutor falsely summation, In insinu
VIII. Taylor’s past for crimes of ated that John involved convictions it The court had licensed this misconduct when violence. improperly mitigating Taylor submit the factor that refused to involving history violence, the use of had no of convictions mitigator, qualifying relegating unde defense instead servedly, “significant” history. (People ex Harris as no rel. one of Duggins, People People Sullivan, 305; 522; v 3 v 74 NY2d NY3d 39.) People Blair, Carborano, IX. 1003; v 301 NY v 90 NY2d prosecution impugn, manipulative permitted court Taylor’s presentation of his abuse, tantamount to child John mitigation compounded the children as witnesses—and then pain warning to consider the harm that was not (Mar Taylor might the children feel if were executed. sadness Gammon, Hendricks, 36; 892; v F3d shall v 307 F3d Burns Washington 260 Penry Lynaugh, Texas, 14; 302; v 492 US v 388 US Manganaro, People People Robinson, 9; AD2d v 218 v 260 NY People People Diaz, 341; AD2d v 508; v AD2d 172 Col 170 People People Calabria, lins, 186; 519; NY2d v 140 AD2d v 94 625.) prose Skinner, court, AD2d X. Unchecked 298 impermissibly sentencing as cast a contest between cution comparative defendant, worth victims centered on their rights. (People People Miller, Harris, 452; v v NY2d People LaValle, 152; Caruso, 437; v v NY2d NY People Mleczko, Peller, 153; NY v 291 NY 88; v Payne People Blair, Tennessee, 438; 1003; v v 501 US People Manganaro, Humphries Ozmint, v 808; 206; 397 F3d 9.) Taylor’s XI. The trial John nonwaiv 218 NY court violated juror *4 right 12 an alternate to a of when substituted able opening arguments. juror penalty-phase regular for a after People People Page, (People Cosmo, 1; v v 91; v 205 NY v 88 NY2d Ryan, People Cahill, 14; 100; 2 Cancemi NY2d v NY3d 19 128.) wrongly People, refused to consider 18 NY XII. The court unchallenged Taylor’s claim York’s lethal- John that New prolonged injection procedures risk create a substantial of unusual and thus constitute cruel and torturous executions Gregg Georgia, punishment. (Campbell Wood, 662; F3d v v 18 Supp Sizer, 658; v 153; v 321 F 2d Beardslee Wood 428 US Oken 1027, 544 1064; 408 F3d US Crawford, 395 F3d Brown v ford, Supp Hickman, 926; 1037, F 438 F3d 1046; v 415 2d Morales States, v 217 US Gomez, 301; v 77 F3d Weems United Fierro 349.) (Gary Attorney, Brown, S. Kew Gardens
Richard A. District counsel), Fidel, Aldea of and Donna John M. Castellano
133 (Susan Valle, New York L. Debra Training Prosecutors Institute counsel), Whitson and Robert J. of for I. respondent. Conflitti The deadlock instruction is neither unconstitutional on its face LaValle, 88; nor v 3 applied as this case. NY3d (People Brady York, 596; v State 80 NY2d People New NY2d v 71 Bright, of Nebbia, 376; 259; People People v 262 NY ex rel. Henderson v Westchester, 1; Board 147 NY Supervisors County People of Stuart, Vacco, 412; v 100 v NY2d Ulster Home Care 96 NY2d Nelson, 505; People 302; v 69 NY2d National Endowment 569; Arts v 524 Finley, US Estates v Flipside, Hoffman Hoffman 489.) Estates, Inc., 455 II. US Defendant does not have standing to challenge New York’s death statute on grounds inap plicable case; event, his but any statute must be up held under the State and Federal v (People Constitutions. Broadie, 100, 950; 37 423 NY2d US v 428 Gregg Georgia, US 153; Hale, v 173 Misc People 140, 2d revd on other grounds sub Tomei, nom. Matter v Hynes 237 AD2d 92 NY2d 527 1015; Kemmler, Davis, US 580; v 119 NY v People People 43 17; Scalza, 604; NY2d v 76 People People NY2d v 71 Bright, 376; Stuart, NY2d v 412; 100 People NY2d Cohen v State Newof York, 729.) 1; Burstein, 94 NY2d McGowan v 71 III. NY2d De fendant was found properly guilty first-degree murder. The jury’s determination in light of the proper nature and circumstances crimes. v defendant’s Ca (People hill, 14; 2 NY3d 490; v 69 NY2d v People Bleakley, Cabey, People Davis, Crum, 417; 85 NY2d v People 17; 43 NY2d v People 272 348; Miller, NY ex v People 55; rel. MacCracken 291 NY Tibbs v 383.) Florida, Mateo, 457 31; US v 2 NY3d IV People The court below denied properly of defendant’s statements suppression because the right to counsel did not attach a result of the unilateral of an attorney efforts whose defen representation dant at the first avail spontaneously unequivocally rejected West, 370; able v v 76 opportunity. (People People Bing, 81 NY2d Coates, 331; v 806; NY2d Faretta v California, People US Wilson, 244; LaClere, 670; People NY2d v 76 NY2d v Gunner, 754; 592; People NY2d v 46 NY2d v People Garofolo, Marrero, Lennon, 226; 56; People v 495.) testimony AD2d V The trial court admitted the properly Martell, of Dr. and defendant waived Confrontation Clause challenge part to the out-of-court statements that were *5 (Price Auth., basis of the v New York Hous. expert’s opinion. City Lee, Cronin, 430; 553; 92 v v 96 People People NY2d 60 NY2d Scarola, 157; Wilder, 352; v 71 People People NY2d v 93 NY2d Yazum, Davis, 17; 769; NY2d v 13 People People NY2d v 43 134 383; 2 302; 97 NY2d
NY2d NY3d Mateo, v v People Rojas, People 749.) prosecutor’s guilt- 32; 96 NY2d VI. The Rivera, v People phase argument trial not at defendant’s did contradict theory respect plea with to the overall codefendant’s allocution prosecution. 869; People 86 NY2d Santos, v Me v (People 116; 951; 5 NY3d 53 NY2d dina, v Yong v People Kelly, People 307; 987; 92 196 NY 66 NY2d Ahmed, NY2d Lee, v People People Yun v 357; 245; 146 AD2d Jackson, Udzinski, v Wain People 452; 72; People 433 US 98 NY2d Harris, v v Sykes, People wright 158.) guilt- four 238 NY VII. Defendant’s claims Emieleta, v phase pertaining error, counts which the command on bearing death, did not sentence defendant to have no on 299; 494 death sentence. US v Pennsylvania, Boyde (Blystone 378; 2d 370; 494 US 177 Misc Harris, v v California, People 222; US 212; US 503 546 Sanders, Black, v Stringer Brown v 736; F3d 52 F3d Calderon, 68 Delaware, v Williams v Flamer 1181; 1465; 436 F3d Mullin, California, v v Chapman Hamilton 230.) 18; The 386 US 36 NY2d VIII. Crimmins, v People prosecutor’s penalty- penalty-phase summation and the court’s phase proper. both 39 NY2d Ashwal, instructions were v (People 819; 67; 81 NY2d 105; People Halm, 6 NY2d Marks, v v People 396; 32 54 NY2d NY2d Brosnan, v People v People Galloway, 254; 168; People 477 US 98 Harris, v v Wainwright, Darden 452; 230; 7 NY2d 36 NY2d Crimmins, Romero, v v People People 911.) The of an NY3d IX. trial court’s substitution alternate juror, guilt phase upon request, after deliberations defendant’s concerning completed prior had been to deliberations proper. 307; 66 NY2d Ahmed, v v (People People 335; 288; 39 NY2d Webb, NY2d 78 Patterson, v v People People 128; 305; 6 18 NY NY3d v Cancemi v People, People Carvajal, 91; 1; 205 50 NY NY2d Tarsia, v Cosmo, v United States People 57; 835; 331 F3d NY2d Dekle, v v De People Spero, People 148.) rejected correctly X. trial gondea, 3 AD3d court challenge injection procedures because the defendant’s to lethal challenge ripe. jurisdiction Further, lacks this Court challenge, brought has not es consider party 310; 2 NY3d before the Court. Nieves, sential (People v 270; Matter 91 NY2d Karassik, Stevens, Hynes v v 261; 659; 93 NY2d NY2d Hernandez, v Church St. 985; 67 NY2d US Barwick, v Mat & St. Andrew Paul & Law Em ter New State Sec. Inspection, York Enforcement 64 NY2d Cuomo, 82, AFSCME, v AFL-CIO pls., Dist. Council 236; 233; Matter Rush, York Pub. New Gordon v 527; NY2d v People Arroyo, v Carey, Interest Research Group 349.) Co., 653; 2d 178 Misc Light. Is. Long Cuomo
135 Greenwald, New York for of Bar Stephen City, Association York, of City of New amicus curiae. I. The strict scrutiny standard to New York substantive due applies claims process (Town v involving Orangetown death 88 penalty. Magee, 41; 19; City NY2d Amsterdam v 37 NY2d G. v Helsby, Mark Sabol, 93 710; People 183; NY2d v Koertge, 182 Misc 2d Furman Georgia, Adams, v US 238; 241; 408 v v People 53 NY2d People Video, 296; Alvarez, P.J. NY2d People 375; 68 v 70 People NY2d 69.) Scott, Morin, v 474; 79 NY2d 49 Cooper v NY2d II. New York’s death penalty statute does not the strict pass scrutiny test, and therefore it violates Due Process Clause. v (People Smith, 41; 63 499; NY2d v v People Fitzpatrick, 32 NY2d People Davis, Oliver, 17; Hale, 43 NY2d v 1 152; NY2d v People People 140; Misc 173 2d Matter Westchester Med. Ctr. County [O’Connor], 517; NY2d v 238; 72 Furman 408 US Sum Georgia, 66.) Shuman, ner v states, 483 US III. Other international com munities and other sources show that New penalty York’s death fails the least restrictive means test and violates due process. 88.) LaValle, v (People 3 NY3d Shaw, Berrien,
Theodore M. New Jacqueline York A. City, Fins, Deborah Miriam Gohara Christina Swarns for Legal NAACP Defense and Fund, others, Educational Inc. amici curiae. I. Racial 2 persists. Cahill, 14; bias v (People NY3d McCleskey 279; v US Kemp, 481 Buckhannon Board & Care Home, Resources, Inc. v Virginia West Health & Human Dept. of Industries, 532 598; US Ellerth, 742; Inc. v 524 Burlington US National Railroad v Passenger Corporation 536 US Morgan, 101; Stone, McCollum, Proud v F2d 796; 945 v Georgia 505 US 42.) The II. life death sentencing decision is especially vulner (Walton able to the Arizona, influence of racial bias. v US 497 639; 28; Turner v 862; 476 US Zant v 462 Murray, Stephens, US Cahill, v 2 People 14; Witt, 412; NY3d v Wainwright 469 US 452.) Dretke, Harris, Miller-El v 231; 545 US v NY2d People 98 The III. Court should not penalty, given reinstate death risk of racial bias and the harm creates. (Beck Alabama, LaValle, v 625; 88; 447 US 3 People v NY3d Alabama, 202; v US McCleskey Kemp, 279; 481 Swain v 380 US Dretke, Harris, 452; Miller-El v US 231; 545 v B., 127; J. E. B. v ex T. v Alabama rel. 511 US Edmonson Lees 400.) Co., Ohio, ville US 614; Concrete 500 US Powers v Abate, Catherine New York New Crime City, Jersey for Center, Victims’ experience Law amicus curiae. New inexorably victims to the conclusion that life Jersey’s leads parole preferable the sanction to the death without first-degree (People LaValle, 88; v for murder. 14.) v Cahill, 2 NY3d (Michael counsel), Albany Dempf LLP, L.
Tobin and Costello Religious Against Penalty York Leaders Death New religious community others, I. The amici curiae. views (Weems Trop States, Dulles, v 349; v 217 US are relevant. United Virginia, People Broadie, 86; 304; v 356 US Atkins US *7 People Smith, Brown, 100; 41; v v NY2d 63 NY2d California Penry Lynaugh, Kendrick, 538; 302; 492 v 479 US v US Bowen Kentucky, 589; v Ford v 361; 487 492 US Wain US Stanford 399.) wright, penalty II. 477 US The death constitutes cruel (People punishment v York’s Constitution. unusual under New People People Alvarez, Barber, 378; 375; NY2d ex 289 NY v 70 People Books, Scott, 79 553; v NY2d v NY2d rel. Arcara Cloud 68 296.) Capital punishment People Video, 474; v III. P.J. 68 NY2d decency. dignity contemporary of violates human standards (Terrence Vilordo, LLP, Connors, & Buffalo M. Vin Connors counsel); Doyle Harrington III R. cent E. and Jennifer Scharf (James Harrington Mahoney Mahoney & P. and Mark J. counsel); counsel); Hodgson (Joseph LLP Da Russ V.Sedita of Jay; (Rodney Melber, LLP O. Personius of vid counsel); Personius Gerald Siegel, Meyers, (Cheryl Rosenthal, LLP Muenkel & counsel); LoTempio Meyers Brown, Davis; & Buth of J. Glenn (Patrick counsel); Bogul Boeck, B. Frank PC. J. Brown of Daniel Wesley Byrnes, ski, Brown, Rochester, E. Blasdell, M. M. James Joseph Carey Cantwell, Catalano, Buffalo; Law A. Ni Office of (A. counsel); agara Joseph Law John Falls Catalano Offices of (Elizabeth counsel); Trigilio, N. J. Ciambrone of Robert Buffalo Derby, Farley, Convissar, Dell, Noemi Paul G. Thomas C. Philip Glickman, Rochester, Fernandez-Hiltz, Buffalo, S. Robert Graziani, Goldstein, Buffalo, Williamsville, N. Sean M. Thomas Hurley, Hill, Buffalo, Paul East Hoffman, Alan S. V. Dennis Kerrigan, Keavey, Ithaca, Karen Aurora, Buffalo, John James E. Amy Lupiani, Korkuk, Kubiniec, Paul Buffalo, A. M. L. Judith MacAulay, Putney, Morris, Rochester, C. Mount Center D. John (Alan Syracuse Community Alternatives, Rosenthal of for counsel); Timothy Forge, Stachowski, Roulan, J. A. Old Michael (Michael Lipsitz, Cambria, Green, LLP P. Stu Buffalo, Scime & counsel); Tallon, M. Rochester, J. Donald ermer of Michael Zdarsky Thompson, & Torre, Buffalo; and Sawicki Nelson S. (Gerald counsel), Agostinelli Con T. Terrence M. Walsh appellant’s police amici curiae. violated nors and others right to counsel under the New York State Constitution inter- rogating attorney represented pending him after an who him on charges police proceeding contacted the and entered the investigation. counsel in the matter under Under this Court’s precedent appellant’s purported consistent over decades, four right “waiver” of the to counsel was ineffective because it was attorney. (People extracted from him in the absence of his v Ar- People thur, 22 People 325; Hobson, NY2d v 479; 39 NY2d v People West, People 370; Lennon, 81 NY2d v 495; 318.) 243 AD2d v People Donovan, 13 148; Grice, NY2d v 100 NY2d Scheidegger, Kent S. Sacramento, California, for Criminal Legal Justice Foundation, amicus curiae. I. v LaValle’s [2004]) conclusory, unsupported NY3d 88 decision to throw out preclusive the entire death is not entitled to effect as (Lowenfield Phelps, Tuilaepa stare decisis. v 231; 484 US v Cal ifornia, 967; States, US v Jones United 373; 527 US Hynes Hobson, v 479; Tomei, Matter v 613; Payne Tennessee, v 808; Florida, US Dobbert v 282; 432 US Cupp 62.) Naughten, 141; McGuire, US Estelle v 502 US (Mar II. The invalid sentence of CPL 400.27 is severable. *8 bury [5 People Madison, US] Alpha v 1 Cranch 137; ex rel. Knapp, Portland Cement Co. v 48; Airlines, 230 NY Alaska Inc. Brock, v Dudley, 678; 480 US Bank Hamilton v Lessee of of [27 US] Pet Superfund 492; Matter New York State Coalition Dept. v New York State Conservation, Envtl. 88; 75 NY2d People People Smith, v 41; Davis, 63 NY2d v 17; 43 NY2d Roberts Louisiana, v 633; Booker, 431 US United States v 220; 543 US 613.) Hynes Matter Tomei, v 92 III. The New York penalty statute is constitutional without the invalid (People Hynes LaValle, sentence. v 88; Tomei, 3 NY3d Matter v Bullington 613; 92 NY2d Missouri, v 430; 451 US v Sattazahn Pennsylvania, 101; States, 537 US v 373; Jones United 527 US Georgia, Smith, v 41; 238; Furman v 408 US Harper, Carolina, Woodson v North 280; 428 US United States v 719.) Morgan 1216; Illinois, 729 F2d 504 US THE OPINION OF COURT J. Ciparick, years ago, [2004]),
Three v LaValle NY3d 88 we jury held that deadlock instruction under CPL 400.27 violates our State Constitution. Because a deadlock instruction necessary is both essential to a death statute and to principles process, compelled conform with of due we were to sentencing portion the entire of the statute. We are invalidate attempt by to decide an earlier a trial court now asked whether to effect of the deadlock minimize the coercive flawed revisiting warrants the issue of that instruction’s instruction constitutionality present applied We as defendant. hold decisis, under the doctrine of stare defendant’s death Supreme the matter remitted to sentence must vacated and resentencing. Court for
I Taylor May Craig coworker, In John and a defendant robbery. plotted Although Godineaux, suggested commit a Godineaux robbing livery cabs, him defendant convinced they should focus instead on fast-food restaurants having previously them, at Mc- was familiar with worked Wendy’s. evening Wednesday May 24, On the Donald’s plan Queens met near defendant’s home with two Wendy’s previously where defendant worked as rob a an ing restaurant manager. carry- met, the two defendant was assistant When tape plastic bag, duct a briefcase “to hold a roll of a black money” handgun, and a semiautomatic which loaded .380 along purchased “fanny pack” street, in his with he had on the clip. an extra ammunition Wendy’s approxi- arrived at
Defendant Godineaux closing mately The two 10:55 minutes before time. ordered p.m., speak separately. Defendant took moment to with food and ate manager, Auguste, coworker. While eat- the store Jean former remaining ap- ing, At at the two customers. defendant “leered” proximately employees 11:15 let those customers one of p.m., Shortly thereafter, the restaurant and relocked door. out of employee area counter and defendant entered the behind the entered the the stairs the basement. Defendant descended gun demanding manager’s pointed Auguste office and while *9 money Auguste $2,400 in took bills all of the the safe. about put from the and defendant’s briefcase and and coins safe response bag, along evening’s In with that surveillance video. only Auguste’s pleas, him he duct- defendant assured that would away. got get Auguste tape employees then on the so he could everybody downstairs, to come we the intercom and stated “tell meeting, having important.” Jaquoine Johnson heard a it is are everyone with Godineaux led downstairs the announcement and employees following. stairs, the had descended Once all of the top phone ripped a cord from a wall near the the Godineaux joined the stairs and others.
Along Auguste, with Johnson and there five other em- were ployees Jeremy Smith, Castro, Mele, store—Anita Patricio Ramon Ali all Nazario and Ibadat. Defendant ordered them lie on floor face down with their hands behind their backs. key In interim, defendant to the obtained restaurant’s employees. Meanwhile, from of the entrance one Godineaux brought gloves, he him, donned which had and duct with with tape employee’s Auguste, bound each of the hands and mouth.1 having breathing, managed who was trouble to free hands his tape response, and remove the from mouth. In his Godineaux punched yelled retaped face, him in the at him and his hands and mouth. employees they
Once of the bound, all were to the were led nearby refrigerator walk-in and ordered to their God- knees. placed plastic bags, ineaux then clear which defendant had employees’ from room, retrieved another six heads, over placed bag remaining employee’s and defendant a over the head. through bag, Johnson, who was to see able his saw defendant Auguste shoot shot, the head. After the Smith started scream- ing happened.” “what fired, When another shot was the scream- ing passed gun ceased. Defendant to Godineaux and said Godineaux, turn, “finish them.” Nazario, Castro, shot Meli, range. Ibadat and Johnson—all in their heads and at close Fol- lowing shooting, upstairs, and defendant Godineaux went door, unlocked the exited the restaurant and relocked the door. Only employees Castro and Johnson The other survived.2 five taped 1. Godineaux employees taped six and defendant remain- ing one, taping mouth, In Castro. addition Castro’s and hands defendant eyes. taped also his testimony only 2. slightly and Castro Johnson differed at trial as to whether Smith was killed or third second shot. Castro testified that he saw defendant him restaurant witnessed go others, to the downstairs office. When Castro went downstairs with the his eyes, taped. refrigerator, brought mouth hands After he was into the were quick upon he heard He then two shots. heard woman scream which ceased shot, hearing passed realizing third shot. After a fourth he not he had out been shot. everything upon regaining Johnson testified that he remembered conscious- initially ness but that he claimed he no because he did not had recollection seeing want to about it. He further that he defen- talk testified remembered Later, separately. dant and Godineaux into the and order af- walk restaurant being basement, gun ter to the he ordered called saw with was eyes taped Auguste to the His not see free floor. were so he was able to break response. Although bag placed and Godineaux hit him in was then over head, eye. right it did cover He thus able defen- Johnson’s his to see *10 *3 point gunshot At some after to the head.* wounds all died from regained consciousness, left, Castro defendant and Godineaux got help using fax machine the office called 911 for free and eventually parted ways. telephone. Defendant and Godineaux investigation police quickly became the focus of Defendant by photo arrays, separate shootings. identified, He was by leaving Wendy’s night person one of that saw him who present defen- in the restaurant when the customers who was police defendant was a also learned that arrived.4 The dant had Wendy’s employee from this loca- had been fired former who police reports learning Upon had from news tion.5 shootings, suspect defendant went him as a identified May County morning 26. on the in Suffolk his sister’s home already Department City had York Police However, the New arrange agreed County police, had who the Suffolk contacted of the home. for surveillance day, operator received a call p.m. a 911
At 4:00 around stating child that a was at the sister’s house from someone injured responding riding bicycle. officers, while picture intercepted of defendant. When and shown a call, were they responding while arrived, arrested defendant officers police treating the loaded child. The found the medics were along Wendy’s handgun with defendant used at .380 wearing. “fanny pack” clip Inside his sister’s he in the extra police suitcase which contained also found defendant’s home, the shootings, during clothing the surveil- he wore some of the tape, approximately and one live .380 $1,500 cash lance round. City police drove defen- officers
Thereafter, three New York placed squad As defendant was Queens. a detective dant to right Craig. “please get now. He’s He’s at SC&R car, he said you security just know, Avenue, 165th and Jamaica like me at defendant, but he to calm officers tried coliseum.” The another shot followed Auguste, Smith scream and hear shoot hear dant gun Godineaux. pass the He then silence. witnessed only person two with gunshot wound to his torso—the Mele also had a 3. plus head wounds of wounds—seven gunshot Thus the total number wounds. discharged that were eight .380 shells wound—corresponds with the one torso the scene. found at lineup at identified in a Defendant, present, was also later with counsel 4. photo his who identified customer precinct two witnesses—the Castro. box of May 26, fingerprint found on the point Additionally, some on 5. linked to defendant. bags storage room was plastic jeop- blurt out was in continued to ardy comments about how his life *11 only Craig everyone he was one because who saw shoot Wendy’s. rights then Defendant was advised of his Miranda “rambling Craig.6 police but he on” The continued about assure he would heard in continued to defendant full they precinct, when arrived at after and about minutes stopped talking.7 he again precinct, rights
At the was read defendant his Miranda interview room and 6:15 then-Detective Elizabeth p.m., began just Curcio to interview him. The interview lasted over During one hour. this time defendant made an oral statement agreed to execute if a written statement Curcio drafted it 11-page for him. Curcio drafted an statement over the course of signed by the next three hours. The statement was Curcio and According statements, defendant. to defendant’s Godineaux did gun not see the until he saw with it in defendant the basement. point, grabbed gun At that Godineaux from defendant and Auguste saying “[n]o screaming shot while witnesses” give clip. defendant him other Defendant stated that he away walked and heard about nine shots. midnight, agreed videotaped
At around defendant to make a attorneys questioned statement. While several assistant district during essentially defendant his video statement—which mir- investigated rored his statements to Curcio—various detectives gaps the inconsistencies and in defendant’s confession. Most glaring was defendant’s claim that Godineaux knew there magazine despite was an extra with ammunition the fact that there was no indication that ever mentioned it to response questioning regarding discrepancy, him. In to the this orally, writing, defendant admitted and later in he shot Au- guste gave gun and then Godineaux the and told him to “finish them.” only 6. Defendant Godineaux had known each other for a month about shootings name, Craig. only
before the and defendant knew his first shortly Godineaux arrested at work after defendant. Due to Godineaux’s retardation, Attorney’s mental District Office did not file death notice a against subsequently plea him and he was to enter in which allowed a he parole would be sentenced to life without for his role in the murders. 7. attorney claiming represented police were she de- contacted prior represen- fendant in that he her matter. Defendant disavowed wanted investigation signed tation in he the instant matter and ensued after request, right waiver of At claim that to counsel counsel. defendant’s his his being was violated is abandoned. by jury 20 counts—six and convicted of was tried Defendant including first-degree under various theories murder felony multiple-victim murder and com- murder, intentional during sentencing phase de- trial which After a mand murder.8 mitigating proffered evidence, the his returned fendant first-degree counts— murder of death on three verdict favor eight—as part transaction, defen- criminal of the same count (see person one Penal Law deaths of more than [viii]); dant caused the § [1] [a] of a rob- fourteen—in the course count 125.27 bery, defendant killed Jean Auguste (see Penal Law § 125.27 [1] robbery, [vii]); [a] defen- course of a and count fifteen—in the [vii]).9 § [1] [a] Penal Law 125.27 killed Anita Smith dant right appeals and sentence as his conviction Defendant now *12 (1). CPL 450.70 under
II jury prior selection, defendant moved On March to declaring jury under CPL the deadlock instruction for an order nonseverable. Defendant unconstitutional 400.27 “injects argued provision into the sentenc- arbitrariness that the jurors giving unconstitutionally ing proceeding into coerces conscientiously up in or- held determinations their possibility parole after a verdict and avoid the der to return denying Supreme twenty years.” motion Court, as few as respects, unable to surmount found that defendant was all constitutionality. strong presumption of statute’s provision Supreme that the deadlock Court determined After jury instruction constitutional, asked for a defense counsel was jail. At the end of never released from defendant would judge again requested penalty phase, that the the defense years give [defendant] “going jury he to tell the was Queens 27, 2000, under originally indicted on June Defendant was 8. including 1845/2000, 21 counts County for numerous crimes indictment No. felony murder first-degree on theories of intentional murder based filed, 10, 2001, was April a second indictment multiple-victim murder. On felony 1012/2001, charging intentional defendant with indictment No. under felony attempted intentional theory well as a command as murders under surviving were consolidated The indictments of the two victims. murder 27, 2002. dated March court order parole on seeking death or life without jury not unanimous 9. The first-degree eighteen, convicted defendant of through which counts sixteen Nazario, killing and Mele commanding the Ibadat felony murder for years to life sentences of robbery. He later received consecutive course of a of those counts. on each ] practical possibility getting jail.”
and there is no out of judge responded: they might they
“And, therefore, if well, can’t agree give parole. death, on him life without requires statute, “The to, statute me not does require say going say. me to I’m what It requires only years for me to tell them 20 to 25 requires. life as to sentence. That is all it What I am doing something more. . . . give guarantee
“I decline to assure them and them a today you I what will do the future and have your objection.” charged jury, part:
On 25, 2002, November the court by you impose “Now, decision a sentence, imprisonment whether of death or of life without parole, would have to be unanimous. In other words, juror agree each would have to to it. required you provides
“I am to tell that the law agree- in the event the fails to reach unanimous respect ment with sentence, the myself. then I must sentence the defendant provides
“And the law that if I sentence the defen- imprisonment, dant, I must sentence him to life but *13 point I must also fix a at which the defendant will eligible parole. become for point
“Under the I law must fix that between twenty twenty-five years and for each count. In words, other on each count I would sentence the de- imprisonment fendant to life and order that he not eligible parole become for until he has served the twenty minimum term I fix, a term of between twenty-five years and for each count. you,
“I think it is fair however, to tell that the six degree [count]s of first murder, and the two counts degree attempted you of first murder on which have precisely type convicted defendant, the are the always judge give crimes that almost induce a to the permissible. maximum sentence authority
“In this case I would have the to sentence only defendant, the the on each to maximum count, but make also to those sentences run consecu- tively. give So, maximum I and the sentence could certainly impose in this case, would almost would years life, a sentence of 175 which means that eligible parole, the defendant but would become jail.” only years after had he served 175 argues, light Defendant of this Court’s declaration in now [2004]) (10)’s v LaValle NY3d that CPL 400.27 jury unconstitutional, deadlock instruction his sentence agree controlling must be vacated. We that LaValle is and resentencing. mandates defendant’s
Ill jury penalty statute, The deadlock instruction of our death (10), provides part: CPL 400.27 relevant jury charge, “In court its must instruct the respect with each of murder in the first count degree jury should not a consider whether or imposed sentence of death should be and whether pa- imprisonment life or not sentence of without imposed, jury role should be that the must be respect The to either sentence. unanimous with jury court instruct that in the event must also jury agreement reach with fails to unanimous respect sentence, the court will sentence imprisonment mini- defendant to a term with a twenty twenty-five years mum term between maximum and a term of life.” present form, in its statute,
New York’s death was (see L enacted constitutionality ch coerciveness and anticipatory its deadlock instruction inception. Supreme questioned from its Court ruled that CPL was unconstitutional Harris 400.27 charge 2d trial 177 Misc refused 1998]). [Sup Kings County appeal Court, Ct, On to this de severing argued Supreme had erred fendant Court argued part unconstitutional of the statute. He further *14 compounded by simply responding that error “No” to a court question jury jury “If not come that asked: does imprison penalty life . . . does the become unanimous verdict possibility parole?” did However, we ment without the (92 Hynes the issue in Harris as v Tomei reach Matter of [1999]) required vacating [1998], cert denied US 1015 (see People Harris, defendant’s death sentence [2002]). jury again challenged The deadlock instruction was (2 [2003]), argued v Cahill NY3d 14 where the defendant jurors the instruction coerced to vote for death because that palatable possibility paroled was more than the that he would be they agreement if could not come to a unanimous and had to sentencing judge. leave in the hands of the The defendant fur- argued ther that CPL 400.27 could not be excised from penalty sentencing statute, because that would result Legislature—in scheme that was not foreseen essence, an impermissible judicial legislation. majority form of The did not challenge reach the constitutional because Cahill’s two first- degree against weight murder convictions were of the evi- legally support respec- dence and insufficient to a conviction, tively. option. Thus, death should not have been an Judges concurring opinion
Two of the Court in a in Cahill opined gravity argument that, because of the and the obligation capital Court’s constitutional cases, to review we (10)’s required were to address the coerciveness CPL 400.27 jury impact instruction and the it had on reliable [G.B. concurring]). Upon Cahill, NY3d Smith, J., at 76-77 concurring opinion consideration of the deadlock issue, the ultimately “[i]t concluded that the statute failed because intro- uncertainty unreliability duces a measure of into the process. Thus, deliberative there is a substantial risk that the jury jury. verdict not reflect the true conscience of the As a constitutional capital such a matter, result cannot be countenanced [G.B. concurring]).
case”
Smith, J.,
NY3d at 83
again
later,
Months
the issue
came before the Court in La-
death-eligible
Valle where we were faced with an otherwise valid
(10),
challenged
conviction. Defendant in that case
CPL 400.27
applied,”
“both on its face and as
on federal and state
116).
(LaValle,
grounds
majority
constitutional
3 NY3d at
opinion analyzed
jury
the deadlock
instruction’s constitutional
acknowledged
jury
flaws. We first
that New York’s
deadlock
unique
“[n]o
instruction
other death
scheme
country requires judges
jurors
they
if
instruct
unanimously agree
judge
cannot
choices, the
between two
will
(id.
sentence
third,
lenient,
defendant to a
more
choice”
explored
placing
We then
the inherent coerciveness of
position.
including
in that
studies,
We looked to various
a South
*15
capital
study
jurors
cases,
which
who served
Carolina
“
dangerous-
jurors’
emphasize
‘confronted]
deliberations
that
early
generate
misguided
death
release
fears of
ness and that
”
Deadly
(id.,
Eisenberg
quoting
Wells,
sentences’
Confu-
Capital Cases,
L
79 Cornell Rev
Instructions in
sion: Juror
1993]).
unseemly
[Nov.
not the
that whether or
We further noted
sway juror
jury
to vote for life without
tended to
a
instruction
provi-
parole
death, the “truth is that
deadlock
than
rather
might
coerce
of the risk that
unconstitutional because
sion is
jurors
giving up
reach
beliefs in order to
into
their conscientious
deprives
of the well-established
This risk
defendants
a verdict.
right
the State Constitu-
under our case law and
to a fair trial
15).
(LaValle,
n
“By the deadlock future unconstitutionally pal- gives to an instruction pable rise jurors who cannot bear risk that one or more thought the streets walk that join jurors favoring again in order to death . . . will . . choice of death deadlock sentence . The avoid the comparison through views, and ‘a not results arguments jurors among themselves,’ but (Id. 118.) through at fear and coercion.” ‘ought precedent, “a coerced verdict Thus, based on our own all, in one case, and least of not be allowed to stand ” (id. quoting involving Sheldon, at a human life’ [1898]). 268, 285 156 NY Supreme the United States we convinced that
Nor were (527 [1999]) reasoning US 373 in Jones v United States Court’s Although held that the Jones Court result. mandated different jurors require Eighth be Amendment does “the agree” consequences of their failure as to the instructed greater 381), Process Clause’s that our State Due we held US protection as “death is Jones could not be reconciled with subject heightened qualitatively stan- to a and thus different 127).10 (LaValle, heightened reliability” This 3 NY3d at dard of possibility plausible if there is could not be satisfied standard routinely been observed: 10. As it has due the Federal and State differences between “The historical they adopted to combat were
process clauses make clear Fourteenth Amendment was entirely . . . The different evils catalogue a series of attempt extend and watershed—an furnishing immunities, thereby minimum privileges and national against protection guarantee individual designed to standards upon jurors life or death determination base their would eventually released from be the defendant would the fear that prison (see Due Process Thus, because our requires anticipatory deadlock instruction Clause provided existing given instruction because Legislature coercive, we struck the 128-131). id. at statute *16 jury persuaded the deadlock were not Furthermore, we requires provision Clause our Due Process could be severed as (see jurors consequences their of of actions be informed the 130). penalty of death LaValle, 3 This is because the NY3d imposition entirely to vote on the too to allow a severe knowledge if it would occur without what such sentence id.). (see unanimity Finally, explicitly stated we failed reach that: new cannot, however,
“We ourselves craft a instruc pre usurp legislative tion, rogative. to do because so would power an have the to eliminate uncon We sentencing procedure, but do not have stitutional we procedure, power fill the void with different greater particularly potentially imposes a one that possible sentence than the deadlock sentence that prescribed has been . . . We thus conclude present penalty statute, under the the death not imposed. have be Cases in death notices been which degree may go noncapital filed first mur forward as 11 added]);* (id. [emphasis prosecutions” der at 131 IV perfectly that the sentenc- LaValle made clear death ing Legislature unconstitutional. statute crafted holdings judgment that our That stemmed from LaValle’s core requires anticipatory instruc- deadlock Clause Due Process existing provision given was unconstitution- and that tion particular, ties, rock Dell State omitted]). potential irrespective of from what v Constitutions have Buick-Cadillac, abuses long safeguarded of a monolithic general, 45 NY2d quarter that the New York Constitution government... 152, threat 160 peril arose” to individual liber- [1978] In [citations contrast, (Shar- Attorney filed a LaValle, has since apparent on no District In reliance 11. uncertainty, holding engendered Thus, has not notice in state. death or our (see 331, 347-348 People Bing, v application proven unworkable [1990]). 130). ally 120, coercive NY3d at Since could not we craft a say: pres- instruction, new we were constrained to “under the (id. penalty may imposed” ent statute, the death not be facially Defendant, here, was thus sentenced to under a unconstitutional statute.12 guided,
Our foremost, decision here is first and principle “[s]tare of stare decisis.13It is well settled that decisis preferred promotes is the course because it evenhanded, predictable, development legal principles, and consistent judicial fosters decisions, reliance on and contributes to the perceived judicial integrity process” (Payne actual and v [1991]). Tennessee, 501 US “The also doctrine rests upon principle merely institution, that a court is an governing individuals, collection of change merely and that rules of do law not personnel changes” because the court [1990]). (People Bing, application withholding “Distinctions in the require delicacy judicial stare decisis a nice self- *17 techniques At restraint. the root of the must be a humbling assumption, particular true, often that no possesses court it is as then constituted a wisdom surpassing predecessors. that of its Without this as- (see sumption jurisprudential anarchy” there is [1976]). People v Hobson, 479, 488 legitimacy ability judiciary Hence, both the the the to legal by function dictate that issues that have been addressed a jurisdiction every they should not be time revisited arise. deeply precept is
Stare decisis
rooted
that we are bound
by
personalities
interpret
a rule of law—not the
that
the law.
weight
holding’s
Thus, the
closeness
a vote bears no
to a
as
precedential
“controversy
by
value as a
settled
a decision in
majority
which a
concur should not be renewed without sound
(Semanchuck
Corp.,
reasons”
Ave. &
v
37th St.
290 NY
Fifth
[1943]). “[0]rdinarily
the
rule so established will be
recognize
sentencing phase
place
12. We
that
the
below took
before our
judge
decision in
diligently
LaValle
that
the trial
to
tried
balance the
weighty
quandaries
crafting
However,
constitutional
jury
in
the
instruction.
as
ultimately
facially unconstitutional,
the statute was
held
is no room
there
judicial
provision,
any
a
there
reformulation
the deadlock
nor is
basis to
the
in
review whether
instruction here was
fact coercive.
phrase
13.
quieta
“Stare decisis et non
movere” is a Latin
that means
(Black’s
things decided,
by
“[t]o stand
to
points”
and not
disturb settled
Law
2004]).
Dictionary
[8th
ed
it is
without
cases which
subsequent
applicable,
in all
adopted
in
(Henry
of law”
point
reconsideration
of its correctness
[1912]).
Precedents, at 182
The
Black, Law of Judicial
Campbell
may differ as to the result does
fact that reasonable minds
force.
majority opinion’s legal
diminish the
decisis,
course,
also
that
the lessons
recognizes
Stare
Thus,
strong presump-
to a
result.
may
time
lead
different
be rebut-
by
particular
ruling
is settled
tion
the law
instance,
holding
cases. For
ted,
only
but
exceptional
rule,
more questions
or that creates
leads
an unworkable
rule
resolves,
it
be better served
new
may ultimately
than
fall
e.g. Bing,
appeals
[“Inasmuch
Furthermore, it is oft-stated that a court should although “not . . stare decisis as constitutional apply rigidly . (Glidden Zdanok, Co.
nonconstitutional cases” US [1962]), such are not warranted here. considerations being susceptible more underlying judiciary rationale on constitutional issues revisiting precedent to correct an error Legislature change cannot constitution power found This is stark contrast court. clear, meaning to correct a statute and make its Legislature has are not wrong. pre- if it a court’s We interpretation believes *18 ruling a sented such here as our constitutional with situation from not render the statute immune on CPL 400.27 does may be as Indeed, the needed correction legislative correction. life enacting provides statute simple as on death. unanimously agree if the cannot without parole (53 decade, People v Bartolomeo Bing, nearly In we overruled after 14. [1981]), suspect when a proposition the a case that stood for NY2d charged knowledge of whether the arrested, police the was the were with matters, preventing prior represented in suspect previously counsel was prior suspect waiving right counsel without the counsel his or her to the from attorney-client re- rule, on a “fictional present. The Bartolomeo which rested to law uncertainty detrimental effective lationship,” in was shrouded 347-351). (Bing, enforcement 76 NY2d at respect Thus, LaValle, as we did in we will continue to Legislature’s province.
V Perhaps overturning mindful in burden it faces such precedent, People argument by recent tweak their conced- ing correctly as-applied that LaValle was as an decided constitu- challenge anything plain tional but further was er- either support position, People ror dictum.15In of this and the misinterpret jurisprudence by dissent our constitutional invok- (100 [2003]) People ing attempt v Stuart an to holding. application undermine LaValle’s As has no here, Stuart reject argument.16 we addressing as-applied challenge
In and facial to an anti- stalking void-for-vagueness grounds, explained statute on we Stuart that: challenges generally
“Because facial to are statutes legislative carry strong disfavored and enactments presumption constitutionality, court’s task when presented as-applied argu- both a with facial and ment is first decide whether the assailed statute impermissibly vague applied is as to the defendant. provides If it is not and statute the defendant adequate police with notice and the with clear criteria, that is end of . the matter . . therefore,
“It follows, that if a defendant makes an as-applied vagueness challenge repudi- court validity it, ates the facial of the statute is confirmed” omitted]). [citations NY2d at 422 support principle, In of this we cited several void-for- vagueness analysis cases that shared this Ulster Home Care [2001] [“Plaintiffs Vacco, been should have required regulation that the was show unconstitutional as applied person’s to them. aWhen conduct falls within the proscriptions regulation, vagueness challenge of a £a must be ” (citations omitted)]; addressed to the facts before the court’ People’s position The argument contrary 15. here is to the taken that was urged only LaValle. LaValle Court challenge they as-applied challenge consider the facial un- believed the preserved. Notably, single 16. there not a to Stuart three reference Indeed, Rosenblatt, opinions Judge issued in Stu- LaValle. even who authored *19 LaValle, separately art and wrote in did not that mention case. v Nelson, [1987] [“It has often been except not relevant circumstances that, in rare said, however, challenge facts vagueness to the addressed must be here, a the defendants if the actions of Thus, . . . before the court not plainly statute, the court will the ambit of are within applica imagine marginal situations which strain to Flip Estates v clear”]; is not so tion of the statute Hoffman [1982] [“A Estates, US side, Inc., 455 Hoffman clearly pro engages plaintiff conduct is in some who ap vagueness complain the law as of the cannot scribed plied therefore exam A court should to the conduct of others. analyzing complainant’s other conduct before ine the law”]). applications hypothetical of the void-for-vagueness
Here, however, we are faced neither with subject challenge challenge that is constitutional nor with a reviewing a void-for- When the same confluence of concerns. weigh challenge vagueness need must statute, of a a court society’s adequate against and effective need for order notice (see generally 420-421; Stuart, 100 NY2d at law enforcement [1995]). Thus, when a 529, 538-539 Shack, ordinary intelligence person that the conduct should know prohibited reasonable stan- statute, and there are issue is person benefit from enforcement, that should not dards for applicable superfluous discrepancy instance. is were faced LaValle, where we is in stark contrast with This completely to a addressed different set of concerns with a safeguard- right task of a fair trial and the critical defendant’s sentencing. ing fairness focused on whether
The concerns LaValle capital right deprived process in a a fair trial and his of due masked proceeding found to be the coercive forces were (10). necessary, language it We deemed of CPL 400.27 prejudice, showing regardless down “to strike of actual of a it creates because in CPL 400.27 instruction deadlock jurors coercing a defendant into risk of substantial (LaValle, 3 Clause” Due Process of our to death violation [“(T)he provision n deadlock at 120 15 128; see also id. NY3d at jurors might coerce risk that unconstitutional because to reach giving up in order beliefs their conscientious into deprives of the well-established defendants This risk verdict. *20 right to a fair trial our under case law and the State Constitu- tion”]).17 that United States v
We find fault
in the dissent’s
Sal-
view
[1987])
erno
US 739
in La-
dictated a different
result
Valle—a contention never even raised in that case. Salerno’s
proposition
to be successful
facial
.
challenge
“[a]
. . must
establish that no set of circumstances
exists under which the
Act
be
would
valid” does not sit
with
well
our state due process
protections
capital
afforded to
proceedings under these circum-
745).18
(Salerno,
stances
at
481 US
In a capital
the unac-
appeal,
of error and the
ceptability
protect
need to
liberties become
(see
call
Harris,
glaringly apparent
and
for heightened
review
at
98 NY2d
[“By
very
capital
its
nature
case requires the
thoughtful
most meticulous and
A
attention.
mistake discovered
correctable”]).
neither Salerno
years
later
not
such,
As
nor Stuart adequately addresses
challenge
capital
procedure
is inherently
coercive and undermines
proper consideration
of
and
mitigating
aggravating
factors.19
Thus,
it was not error for us to review the
challenge
facial
of
(10)
LaValle. Nor is there any sound reason in
CPL
in
400.27
law for us
now rewrite
our
history
recategorize
holding
dictum,
as the
and dissent
People
urge.20
People
17.
ruling
The
cited to the
LaValle
trial court’s
in this case as an
(10)—an
constitutionality
argument
indication of
of CPL 400.27
that was
implicitly rejected by
holding.
LaValle’s
perplexing
position
18.
find
analysis
We also
the dissent’s
that our
here
(see
employed
dissenting op
167,
should be the same as
ing
tax cases
cit-
[2003]).
Corp. Urbach,
Towing
Matter Moran
of
Furthermore,
agree
19.
we
ap-
even if were to
with the
that Stuart
here,
plies
place
certainly
lofty
surrounding
appeals
capital
concerns
would
exception
general
as-applied
this as
to the
of performing
rule
chal-
(see
lenges
Stuart,
agree
[“we
first
In LaValle,
hand,
on
other
the invalid
inextricably
tion of the statute was
with the
interwoven
sentenc-
ing procedure
necessary
Legislature’s
to effectuate the
correctly recognized
concurring
opinion,
intent. As
attempt
offending portion
to sever the
of the statute would
“misshapen fragment
original”
result in a
drafted
impermissible
legislative pen (concurring op
court’s
use of a
Finally,
reject
People’s
we
invitation
rewrite the
proposed
because,
deadlock instruction.
This
under the
obliged materially
scheme, we would be
rework the death
contrary
in a
statute
manner
to our role. In order to
proposed by
function, as
dissent,
and the
a trial
*22
required
jury
court
be
would
to inform the
in advance the
likely impose
sentence it
would
the event
To
of deadlock.22
present
require
do so under the
statute would
the court to act
presentencing report
without
the benefit of a
in violation of
Additionally,
CPL 380.30 and 390.20.
framework
new
would
repugnant
Legislature’s
be
to the
intent as
court would
analysis
have to
some
conduct
sort of actuarial
and health as-
expected longevity
sessment to determine a defendant’s
as well
However,
ultimately
21.
we did
resulting
vacate all death sentences
from
offending plea
trials
provision
that occurred while the
still in
effect
Harris,
496;
Mateo,
383,
[2004],
98
2
NY2d
v
NY3d
cert
denied
[2005]).
[2004];
Shulman,
Accordingly, the judgment of Court should be modi- Supreme fied by the sentence of death and vacating remitting to that clear, repugnant being 23. To be the (see notion is not that of a court confronted 173-174). dissenting op with placing actuarial data Rather it is the court position in a in which it must in if each case determine is close enough capital end of life before the can be instructed on sentenc- ing. legislative history supports paradigm. Not a scintilla of such a 24. only “appl[y] The dissent contends that to a statute would core group subject sentencing] charged [those defendants to consecutive with *23 crimes,” legislative (dissenting op the worst a notion unoffensive to intent simply application encompass This is as the false statute’s would also Further, terminally groups aged aberrational of defendants like the and ill. wrongly sentencing subject the dissent that those are assumes consecutive always (dissenting op the ones who commit the “worst of the worst” crimes 169) subject multiple as various murders are not to consecutive Rosas, e.g. People ap- [2007] [consecutive v 8 NY3d sentences transaction]; § propriate during 125.27 for double murder the same Penal Law provision single despite [1] [a] [xi] [the serial killer is considered a crime murders]). involving multiple (5) (c) resentencing 470.30 in accordance with CPL
court for §§ modified, af- and, as so Penal Law 60.06 and 70.00 and firmed.25 (concurring). result, constraint of I concur in the on J. Smith, [2004]). v LaValle NY3d
I anticipatory holdings LaValle are that the The two central of required capital CPL 400.27 in trials deadlock instruction anticipatory unconstitutional, and that a different is Legislature provide, only can instruction, which the deadlock Judge constitutionally required. Judge Graffeo, Read and I dis- holdings. party case, or amicus asks In this no sented from both holding, Criminal Justice the first but amicus us to overrule People, tepid Legal Foundation, the endorsement with the The Court is unanimous asks us to overrule second. my colleagues simply rejecting invitation—indeed, all six holding why ignore explain briefly I the second I think it. will be overruled. LaValle should not underlying policies decisis, of stare which doctrine predecessors stability, predictability, respect for our
include preservation public courts, are at their confidence change strongest its mind al- where, here, as a court is asked to sug- changed. though nothing significance No one else of has years, gests any development three either the last community, changed has or the law’s effect on law Indeed, decided. we are asked context which LaValle was very in LaValle—not revive the same statute held invalid step, theoretically impossible I one. far as can but a radical So thing, the occasions on tell, never done such a we have (see generally Treanor done it are rare which other courts have Overruling Sperling, Prospective “Un- and The Revival [1993]). Statutes, 93 Colum L Rev 1902 constitutional” ap- generally has less force when It is true that stare decisis (People interprets plied precedent constitution to a [1990]). Bing, because an error This is interpretation, courts, can- if not corrected constitutional process through except all the difficult not be corrected at opinion plurality here, But constitutional amendment. objection from the that other requested without 25. Defendant has on La- sentence based vacates his death issues not be reviewed if Court Valle. *24 149-150), Legislature points (plurality op undo out at the can simple though passing most, all, of LaValle’s effect anticipa- require statute. LaValle reads the Constitution to tory telling jurors, substance, that deadlock instruction hung jury parole. consequence of a will be life without To redesign relatively enact such an instruction would be to penalty easy if statute, and it is to do minor feature of the death Legislature thought, think, to do it. I and still that wants wrong holding redesign required, but LaValle was to be justify casting the harm done the error does not stare decisis aside.
II present held, said, at “that LaValle also least under the penalty may imposed” statute, the death not be NY2d at 131)—i.e., just applied that the statute was invalid not as to La- applications. Valle, dissent, but in all of its The of which I was nothing author, said about this feature of the LaValle deci- my oversight; case, least, sion. In at not an I silence was thought then, I now, was silent because as I think at- tempt penalty through to save a remnant of the death statute severability” “application an exercise in Perhaps, be mistake. would 164), today’s suggests (dissenting op dissent majority explained why application LaValle should sever- have ability explanation work; would not I will offer an now. agree Certainly,
I with much that is said in the dissent. there nothing charge judge gave coercive about the the trial prohibit giving case, this and the statute did not him from it. Thus, cases, one, there are of which this is which the 1995 penalty reasoning could, LaValle, death statute under the of severability constitutionally applied. question application only governing is whether a statute those cases would be consis- Legislature tent with the intent of the that enacted the broader (see Reporters Surrogates Supreme statute Association & Ct. City York, 39, 47-48 Within N.Y. v State New [1992]). says yes, arguing, the 1995 effect, The dissent Legislature eager a death that it would was so to enact anything accepted a court test almost that would survive have dissenting op historical truth There is no doubt some differently. approach I ask this, but I the issue whether being comply penalty statute, altered to with La- after anticipated Legislature the LaValle Valle, is one a sensible might a reasonable enacted, and whether bears decision have Legislature enact. I answer did to the statute resemblance questions remain after The statute that would of these no. both misshapen operation proposed would be the dissent’s fragment rescue original—and that result would to achieve even *25 require rewriting it less the that would make a of the statute Legislature Court. than of this creation problem statute, from the In effort to remove the LaValle an provide the death that, it to before the dissent would rewrite (or, perhaps, judge considered, the trial must can be impose may) she consecutive decide whether he or will jury If the deci- of a deadlock. concurrent sentences event table, but a sentences, death is off the sion is for concurrent may, judge if those sentences sentences who chooses consecutive expectancy, up announce more than the defendant’s life add jury jury, choose between and then let the that decision to the did here—but what Justice Fisher death and life. This describes decided, therefore defendant LaValle he did it before (Indeed, procedure. objection asked made no to the stronger Fisher than the one Justice for an even gave.) instruction post-LaValle a envisions—where In the world dissent indispensable prerequisite procedure to a death is an like this argue penalty—no consent to it. Defendants will defendant will by unprecedented, statute, and unfair that it is unauthorized promise judge what a to a about for a to make an advance argument some merit: Is not defen- has sentence will be. by any judge by unconstrained sentenced dant entitled to be previous commitment? problem recognize more theoretical than
I that this practical. capital one, horrible cases, like this involve Most prison longest possible cry aloud for crimes that seem penalty. only acceptable to the death as the alternative sentence keep open principle mind should that the sentencer But the actually pronounces is still an sentence until he or she important one. principle Legislature validly
Perhaps aside could set procedures to make create some situations, and could in some example, might, sentencing promise defensible; it for more by suggested “scheduling” change dissent, adopt of the kind precedes report presentencing designed sure that the to make (dissenting op judge’s charge punishment trial at the 173-174). Legislature this. The whole new has not done But the handling suggested way one that the dissent is death cases have judges thought It is one up. thing say a decision Legislature valid; this adopt peculiar procedure would be it is another for a court to surmise that the 1995 Legislature it, would have adopted with no more basis for the surmise than that Legislature’s favorable view of capital punishment (cf. Reno v American Civil Liberties Union, 521 US 884 [1997] [declining to “impose limiting construction” on a statute that “provides guidance no what ever for its limiting coverage”]; Randall v Sorrell, 548 US 557, —, 126 S Ct [2006] [rejecting severability where it would have required writing intent]). words into the statute or guessing legislative The substantive problems with the dissent’s reconstructed statute are even more serious than the procedural ones. The dissent the LaValle problem can be solved by suggests the class reducing of defendants eligible execution to those whose sentence in the event of deadlock would be “so lengthy in relation to life expectancy” they would certainly die *26 174). before being paroled (dissenting at op But neither our Legislature nor legislature anywhere, so know, far as I has a “life adopted expectancy” test for death eligibility—perhaps because such a test is so a bad plainly idea. Life expectancy depends on age health, state of and neither of those should be a basis for whom deciding to execute.
The dissent recognizes this but problem, underestimates its seriousness. No doubt there will be few 70-year-old first degree murderers dissenting 172), at op but what about year olds? John Taylor was 36 at the time of the Wendy’s murders. If he had killed only two people five, instead of he might, the event of a jury deadlock, have faced a maximum sentence of 50 years. that, Would under the rule, dissent’s proposed be enough to make him eligible for the death if penalty? What he 42? were Certainly, on some but hypothetical plausible scenario, Taylor could be LaValle, while, executed under a 20 year old who com- mitted the exact same crimes could not be. This does not make sense.
Perhaps, by doing even more the surgery on statute than the dissent could proposes, we solve this statute problem. might The be rewritten irrelevant, to make and health age limiting death sentence least, to defendants facing say, years consecutive sentencing; the dissent be may obliquely suggesting such an cutoff, in arbitrary its remark that “a defendant-specific ‘actuarial analysis’ is not But required” (dissenting op the dissent rule, does not embrace a simple minimum-years to do so be to travel too far recognizing that would
perhaps from the statute the enacted. Legislature actually
I say its majority right conclude LaValle was I penalty wholly rendered the death statute invalid. holdings dissenters, wish it Like the I would prefer were otherwise. statute, save I either something help because want side the death but because I argument penalty, over issue, that on this as on most controversial issues believe other defer to decide public policy, legislatures courts should what [2006]). Robles, v NY3d 338 I continue to think (cf. Hernandez unjustified interference with author legislative LaValle was above, ity. But, I LaValle did not render pointed out can, will, if has Legislature Legislature it powerless. either, doing the death it. In it repair repeal statute into realm of bring capital would issue back punishment democratic where decision-making, belongs. [2004]), NY3d 88 J. In LaValle (dissenting).
Read, judge sentence because the trial gave was vacated deadlock to the But no such coercive jury. coercive instruction Here, in this case. John given instruction of a Taylor’s death sentence is vacated on the basis non-coercive well be might deadlock instruction. Fair-minded citizens the Court of forgiven Appeals simply whether wondering sentence, no matter uphold ever a death how unwilling (or rewritten), matter how carefully law is written no out I carry responsibilities. the trial and the their judge dissent. respectfully
I. The Decision in LaValle Court’s (10), is set in CPL 400.27 The deadlock instruction forth jury the to the in the charge which deals with summations and that a defendant’s follows separate proceeding in its entirety This states capital provision conviction of murder. as follows: evidence, the the people
“At the conclusion of all in sum- may present argument and the defendant sought by mation for or the sentence the against first summation may deliver the people. people then the last sum- and the defendant deliver Thereafter, mation. the court shall deliver charge in the to the on matters circum- jury appropriate In the court must instruct the charge, stances. its of to each count murder jury with respect jury the first the should consider whether or degree not a death should imposed sentence of be imprisonment whether not a sentence of life parole imposed, jury without should the must be with respect unanimous to either sentence.
The court must also instruct the the event jury jury to reach unanimous with re- agreement fails sentence, to the the court will spect sentence de- to imprisonment a term with minimum of fendant twenty term between and twenty-five years and a of maximum term the court’s Following charge, life. of shall jury retire consider the sentence to be imposed. Unless inconsistent with the of provisions section, this sections 310.10 provisions [‘Jury deliberation; of; conducted’], where requirement deliberation; 310.20 [‘Jury use of exhibits and other deliberation; material’] and 310.30 [‘Jury request for shall govern information’] the deliberations added). the jury” (emphasis LaValle,
In the jury found the defendant guilty first-degree murder course of and of first-degree rape furtherance (Penal [vii]). § Law [1] [a] 125.27 The trial judge delivered short, unembellished instruction on subject deadlock, potential advising that “in the event simply that you fail to reach agreement unanimous death or life [on without pa- I role], then will sentence the defendant to life imprisonment minimum Murder, with a term of between 25 years 20 and 1st On we Degree.” appeal, constitutionality “address[ed] ” (3 ‘deadlock [this] instruction’ NY3d at
We our analysis by empirical started several studies surveying on behavior juror regarding capital sentencing, which concluded tend how “jurors grossly long underestimate capital stay murderers not sentenced death usually prison”; will be from jurors that “the sooner think released prison, they more are to vote for and the more likely (id. they dangerous” are to see the defendant as at 117 likely omitted]). result, marks and citations As a quotation [internal on objectionable we reasoned that instruction was deadlock *28 the First, suggested two related the instruction that grounds. if years jurors in as as 20 the might paroled defendant few introducing proved unanimity, to thus into their unable achieve statutory aggrava- deliberations a consideration that was not a “[b]y dangerousness. Second, defendant’s future tor—the interjecting dangerousness, the deadlock instruction future unconstitutionally palpable [gave] an risk one or rise to that jurors [could thought not] more who the that a defendant bear again years [might] serving the streets after walk jurors favoring join [would] death in order to avoid the deadlock (id. discussion, At the of this we sentence” conclusion today “[w]e stated that hold that deadlock instruction (10) required by is CPL unconstitutional under the State 400.27 unacceptable it because risk that result Constitution (id. arbitrary coercive, unreliable, in a thus sentence” added]). [emphasis at 120 holding legislative We buttressed this with discussions precedent, instruction; debate federal most on deadlock prominently Supreme Court’s United States decision [1999]); prece- Jones United US 373 and New York States regarded that “as dent on coerced verdicts. We stated we Jones repeated principle qualita- unfaithful to the often tively subject heightened to a different and thus standard (id. 127), reliability” State mandated. which our Constitution Accordingly, we concluded that it was
“necessarily responsibility to our strike down the 400.27 deadlock instruction CPL because coercing jurors into creates substantial risk sentencing a to death violation our Process in- Due Clause. deadlock instruction is condemning valid under our own case law coercive instructions, Due and the State Constitution’s Pro- greater protection providing Clause, than its cess Consequently, counterpart. defendant’s federal (id. at death sentence must be set aside” added]). [emphasis “conclude[d]
Next, we the absence of instruction [was] under our constitu- no better than the current instruction (id.). “decline[d] analysis,” again adopt so Jones” tional consequences instruction as to We reasoned without jurors might speculate, Legislature appar- deadlock, of a “as the ently [deadlock] prescribe when it decided to instruc- feared (id.). again support pointed empirical tion” We studies “jurors might fear to reach a unani- view that failure release, retrial mous verdict would lead to a defendant’s *29 sentence to an even lesser term than the one currently in prescribed the deadlock scenario minimum of 20 to 25 [a years life]”; “[findeed, and that a for key jurors motivation vote the fear de- penalty undoubtedly for death is their that a (id.). fendant will otherwise a the pose danger on streets” In this section of the we articulated our in opinion, holding First, two related stated ways. “[w]e we that hold that in this case Due the Process Clause the New York Constitution requires higher standard of fairness than Federal the Consti- (id. 129).1 Jones tution as the interpreted by majority” at Second, [held] “we that providing no deadlock instruction course violates our Due capital Process (id. 130). Clause” at As further we support holdings, these called attention “the legislative clear intent that there be a jury instruction on the consequences deadlock,” and court rules and legislative enactments to this effect in eight states (id.).
At the end of the instruction, discussion the deadlock we determined that cannot. . . “[w]e ourselves craft new instruc- (id. tion, because to so do would usurp legislative prerogative” 131). We then made the lie following pronouncements, which at the heart of our with quarrel majority on this appeal: “We thus statute, conclude under the present the death penalty may not be imposed. Cases in which death have notices been filed go forward as first noncapital degree murder (id.). prosecutions” sum,
In LdValle held deadlock instruction delivered by the trial in that judge case violated the Due Process Clause of our State Constitution a substantial risk that a creating juror favoring life without parole would coerced into voting for the death sentence so as to prevent defendant’s eventual addition, release In LdValle parole. on held Due Pro- cess Clause our State Constitution mandates that our death statute instruction, include a deadlock only which Legislature may devise.
I continue to believe that LdValle wrongly was decided for the reasons I dissent, articulated R.S. Smith his Judge which Nonetheless, joined. I holdings binding accept foregoing noted, although decision, 1. As the LdValle dissent Jones was a 5-4 not one of the nine Justices endorsed the idea that the Federal Constitution mandates anticipatory capital consequences instruction in a case on the of deadlock 146-147). precedent majority now, has for reasons of stare decisis. The closing spare in La- however, chosen to convert the comment present penalty may statute, the death Valle that “under the “holding” imposed” not be that case that “the into our penalty sentencing face” statute unconstitutional on its is (plurality op at
There no of the deadlock instruc- discussion LaValle any legal constitutionality; opinion devoid of tion’s facial reasoning support holding deadlock instruction *30 facially CPL is While “both le- 400.27 unconstitutional. gitimacy ability judiciary and the to function dictate that by jurisdiction legal should issues that have been addressed 148), (plurality op every they this not be time arise” at revisited question presupposes legal has, fact, maxim issue in in that analyzed and court. been decided To the extent judicial purporting to utterance in LaValle be read as hold facially unconstitutional, it does not the deadlock instruction (“A judge’s power meet to bind is limited this test is dictum. dictum him; to the before he cannot transmute issue is ” uttering waving ‘hold’ into decision a wand and word (2d [United 1979, n 2 Rubin, F2d Cir States Friendly, concurring)].) J., University
In the York School of Law’s annual James New Judge Madison in Pierre Leval of the United Lecture N. Appeals States for the Second Circuit discussed the Court distinguish hazards in courts between inherent the failure of holding Judging Leval, dictum and Madison Lecture: Under [2006]). L Rev 1249 Dicta, the Constitution: Dicta about 81 NYU particularly telling in of his observations are the context of Two appeal. this handy separate Judge
First, out a dictum Leval set test holding: from identify ques- dictum, useful to turn the
“To is opposite, proposition tioned around to assert its proposition to rejected the court assert whatever alternative rejected If in the insertion of its favor. place reasoning, proposition into court’s change adopted, require ei- the one would judgment reasoning sup- or the ther court’s ports proposition it, It is then the is dictum. compelling superfluous. no It had functional role (id. judgment” Here, the “questioned proposition” is that the deadlock instruction is facially unconstitutional, and “its opposite” the deadlock is, fact, instruction facially constitutional. If we applied this analysis LaValle, our judgment defendant’s favor would not have changed because the deadlock instruction delivered by the trial judge created a substantial risk of a coerced verdict of death. Any assertion LaValle about whether the deadlock instruction facially unconstitutional was “superfluous” to this reasoning “had no functional role in compelling” the judgment.
Second, Judge Leval observed that “[h]owever grievous the errors a court commits when it writes dictum disguised as hold- ing, those errors would be neutralized if the next court would recognize the dictum prior nonbinding go on to grapple (id. with and added]). decide the issue” at 1268-1269 [emphasis way majority now treats the LaValle dictum as prece- dent is a tale in cautionary this regard. Wrapping itself in a false mantle decisis, of stare the majority ignores the is- legal sues presented by this case. If ever so politely, the even majority chides the having temerity prosecute an appeal in a case where “we are left ultimately exactly where we were 155).2 three years ago” (plurality op
Rather than shrinking defensively from the least suggestion of error or inadvertence, the plurality should have taken the path of self-correction advised by Judge Leval. The plurality should have squarely confronted and decided the legal issues raised this appeal: whether the deadlock instruction was constitutional as applied to the case, defendant this and whether, was, even if it his conviction must nonetheless vacated because the deadlock instruction CPL 400.27 facially I unconstitutional. now turn to those issues.
II. The Deadlock Instruction in This Case In keeping with CPL (10), 400.27 the trial judge informed the that the event deadlock he would sentence defendant Unaccountably, 2. plurality spills great the also defending deal of ink our decision in LaValle deadlock instruction is not severable from at- 153-154). tack that the (plurality op do not mount The took position that, appeal on they agreed this while on the merits with the La- dissent, they Valle “operate[d] reasoning, under the accepting LaValle Court’s rulings ... as stare decisis” its that the deadlock instruction was unconstitu- tionally applied case, coercive as in that and not was severable from the remainder of the statute. [defendant] required him to
himself; that the law to “sentence point imprisonment,” life but to “fix a at which the defen- also parole”; eligible [would] fur- dant become for and that the law twenty twenty- point required ther him to “fix between and years provided five for count.” He then further clarification each “[i]n jury, advising each count I words, to other on imprisonment to life and order would sentence parole eligible had that he not for until he served the become twenty- twenty fix, term I a term of between minimum years five for count.” each just judge placed he next what had said context jurors thought jury. before the He informed the that he case tell” “fair to them degree [count] murder,
“that the six s first attempted degree murder the two counts of first on you pre- defendant, are have convicted the which cisely always type of crimes that almost induce judge give permissible. to maximum sentence authority “In this I would have the to sentence case only defendant, not to the maximum on each the count, tively. to run but also make those sentences consecu- give I So, the maximum sentence could certainly impose case, in this almost would be would years life, of 175 to which means that a sentence eligible parole, but the defendant would become years jail.” only after he had served juror listening charge No have harbored rational this could might fear that a deadlock lead defendant’s reasonable community. Thus, eventual release back into the the deadlock simply pose did the risk of delivered this case instruction us verdict of death that caused coerced and unreliable in LaValle. vacate death sentence clearly give judge empowered Moreover, the trial *32 (10) charge gave. that he Section 400.27 mandates that “the jury any appropri- charge to the on matters court deliver a shall added). (emphasis judge Here, the ate in the circumstances” trial thought infor- it “fair” to communicate truthful and accurate practical certain[ ]” to conse- to the the “almost mation quences in of this case. There of a deadlock the circumstances exactly nothing wrong trial this; fact, in it is what the with judge rights protect of a should have done to constitutional (see Gregg Georgia, 153, v US on life 428 trial his
167 [1976]; Ramos, 992, 192-193 see also v 463 US 1009 California [1983]). contends, however, Defendant that amounted charge “judicial in rewriting” deadlock instruction contraven- (10) tion of CPL 400.27 and our decision in LaValle. This is incorrect. The trial judge gave deadlock instruction required statute, and then explained its implications jury. in Nothing this, section 400.27 in and, forbids this pre- case, LaValle it is commendable the judge took the extra step extinguish any possibility of a coercive instruction. If the Legislature had wanted to a trial from prevent judge expanding on the instruction, deadlock could have and surely would have done [10], so CPL {compare 400.27 with CPL 300.10 [3] [setting out within quotation marks the exact words a trial judge must charge “without elaboration” where a defendant has raised the affirmative defense of lack of criminal responsibil- defect]). ity by reason of mental disease or As for our decision LaValle, merely we stated there that the Court of could Appeals not craft a new generic deadlock instruction to replace the exist- (10). one in ing CPL 400.27 It perhaps bears repeating trial judge did, here in fact, deliver the statutorily required deadlock instruction. I therefore conclude that the deadlock instruction given this case was not coercive unconstitutionally under analysis LaValle. The deadlock instruction was constitutionally applied defendant.
III. Constitutionality Facial of the Deadlock Instruction Our precedent is well-established: “A mounting a facial party constitutional challenge bears the substantial burden of demon strating and in degree every conceivable application, the law suffers wholesale constitutional In other impairment. words, the challenger must establish that no set of circum (Matter stances exists under which the Act would be valid” Moran Urbach, 443, [2003, 99 Towing Corp. NY2d Cipar ick, omitted], J.] [internal marks and citations quotation quot ing Cohen v State New York, 1, [1999] and United Salerno, [1987]; States v 481 US see also v Stu art, [2003] [“A successful facial challenge means that the law is incapable invalid toto—and therefore (internal any valid marks and citations application” quotation omitted)]). The general taken the courts is to “limit approach *33 “enjoin only problem” the unconstitu-
the solution to the and applications leaving applications tional of a statute while other portions leaving problematic force, in the or to sever its while (Ayotte N. New remainder intact” v Planned Parenthood of omitted]).3 England, [2006] [citations 320, 328, 546 US the instruction is not We decided LaValle that deadlock authorizing statutory provisions severable from the other the penalty. question death The therefore becomes whether applications and of the deadlock constitutional unconstitutional they not, If death instruction are severable. are defendant’s though sentence must be vacated even the deadlock instruction constitutionally conceding applied Defendant, him. while may constitution- certain circumstances the statute be ally why applied, three the Court should take this offers reasons by long-standing extraordinary step, highly which is disfavored (1) precedent: remaining ap- and constitutional state federal plications regime contrary are too few and create a “freakish” (2) legislative relatedly, intent; the death could not be elderly terminally constitutionally applied ill; or the (3) problems. there are administrative Remaining Applications require that
Both the federal and state constitutions persons eligible “genuinely for the states narrow the class of “reasonably justify imposition penalty” of a more death death-eligible “compared to severe sentence” on those made (Zant guilty Stephens, 862, v 462 US others found of murder” 452, Harris, v 98 NY2d 476-477 [1983]; see also [1998]). Hynes Tomei, 613, Ac [2002]; Matter v 92 NY2d § cordingly, Legislature 125.27 limited death- Penal Law intentionally, eligible, first-degree murder to those who kill ag separately includes at least one of 13 listed whose conduct [i]-[xiii]). (Penal § [1] [a] gravating factors Law 125.27 only LaValle, however, our decision in As result of subcategory death-eligible never defendants—those who will prison even if the deadlocks on be released from parole—would or life risk of sentence of death without see also Amendment overbreadth valid) protected doctrine challenge is based on constitutional 3. There is a if invalid expression render a statute invalid Barton, recognized exception to the of them so as not to forestall or “chill” Broadrick review]). This is not an overbreadth v free-speech grounds. The “overbreadth” Oklahoma, 75-76 all [2006] its general 413 US applications [discussing rule where case. 610-613 constitutionally (i.e., facially in- test for First [1973]; facial This is these penalty. only first-degree because murderers immune to effect of the deadlock instruc- would be the coercive *34 the “worst however, tion. This embraces of subcategory, killed worst”; murderers who have specifically, first-degree and separate have other multiple victims committed and/or are for sen- they eligible distinct crimes such that consecutive in of equivalent tences so total as to be the functional lengthy (the here); life without parole first-degree case murderers whose separate and distinct additional crimes are so severe that has life Legislature prescribed an automatic sentence of parole. without
For cor- example, person serving a life sentence who kills a rection officer no parole, will have of of possibility regardless deadlocks, whether for he jury already two reasons: is serv- ing conviction, life without on the and the of parole prior killing a correction officer constitutes but only first-degree murder (Penal [iii]), also “aggravated § murder” Law 125.26 [1] [a] which automatically results in a of sentence life without parole (Penal Law § 70.00 [3] [a] [i]; §§ 60.06, 70.00 [5]).4 killing a police officer or a peace aggravated officer also murder (Penal Law § 125.26 [1] [a] [i], [ii]). Additionally, Legislature has mandated a sentence of life someone, without parole years age older, or intentionally who murders a child under (see age L during the course certain sex crimes Law”]; [5]; ch 459 [“Joan’s § see also Penal Law 125.25 60.06, §§ [5]); 70.00 and the crimes of terrorism where underlying offense is a class A-I or there is felony, posses- when sion biological of a chemical or or weapon degree, first (see use of a or in L biological weapon degree chemical first the. 2004, ch 1 [creating the State Office of Security Homeland measures]; enacting various anti-terrorism see also Penal Law § 490.25 [1], [2] [c], [d]; §§ 490.45, 490.55, 60.06, 70.00 [5]). In mandatory crime, the case of a the trial life-without-parole judge would inform the that he was required sentence to life without parole notwithstanding on a deadlock count of We stated first-degree specifically murder. had LaValle that the deadlock sentence been life without “[i]f then have reason fear a deadlock parole, jurors would no In would result in the eventual release of the defendant. ag- Against 4. crime The “Crimes Police Act” established new gravated 765; Support, murder L also Mem in ch see Senate 2575). NY,
McKinney’s Session Laws of jurors parole instance committed life without would not be up giving into their in order coerced conscientious belief n reach a verdict” NY3d Legislature
Further, first amended sections 60.06 and 70.00 of the Penal Law relation to for manda- tory life-without-parole July 2004, a month crimes about af- Legislature ter our in LaValle. The included within decision provisions “nothing these the admonition that in this section” 60.06) (Penal (Penal [5]) § § Law or 70.00 “subdivision” Law respectively preclude prevent “shall sentence of when degree the defendant is also convicted of murder the first chapter.” defined 125.27 of 60.06 section this Sections (5) have amended since to new 70.00 been twice add crimes. *35 argues Defendant that the is nonetheless deadlock instruction facially applications unconstitutional because its constitutional position post course, -LaValle few. This a is, are too curious affirmatively take since the federal and state constitutions re- limiting eligibility. key quire result, death As a consideration many applications penalty is not how constitutional of the death in LaValle, remain after our decision ing applications but whether those remain- penalty applicable to are rational. A death first- degree multiple kill commit murderers who victims and/or multiple killing police crimes; officer, include or whose crimes a during peace killing officer; officer or a child a sex correction killing crime; or in the course of terrorist-related activities Certainly, Legislature surely rationality. meets the test of if the applications purposely penalty had confined death these adopted 1995, it when the statute in its decision would have judicial second-guessing been amenable to on the basis that too (see Harris, crimes or murderers few were covered 476-477). though, contends, instruc-
Defendant also the deadlock facially precisely tion is unconstitutional because it allows for applications originally than envisioned far fewer constitutional Legislature. Legislature by Defendant surmises that preferred penalty have no death at all to the “freakish” would Similarly, opines regime left after LaValle. the concurrence “any attempt penalty to save a remnant of statute through ‘application severability’ an exercise would be a 157). (concurring op at mistake” penalty adopted Legislature statute
The death was political public re- 1995 after almost two decades of debate (see Widening, Budget Gap is New York Sack, Political action Times, Bill Limited 9, 1995; Dao, New YorkLeaders Mar. Offer 1995). Penalty, Times, 4,Mar. The death York on Death penalty New Every aspect of this then, now, controversial. was unpredict- going litigated, legislation clearly to be with new example. perfect a instruction itself is able results. The deadlock legislative illustrates, least As set out LaValle debate including anticipatory apparent instruc- one motivation for potential consequences on the of deadlock was avoid tion 121). (LaValle, problem” The United NY3d at “constitutional years Supreme decide Jones until four Court did not States And, as 1999; not decide LaValle until 2004. later, we did judicial previously differed. discussed, the outcomes penalty light enacting past a death In of its difficulties going Legislature forward, included a sev- the uncertainties § By erability provision L ch so in the statute way possible doing, Legislature it told us in the clearest redesigned preferred judicially statute with or “rewritten” Allowing applications the death to a nonexistent one. fewer charged applied group defendants with to be to core legislative intent; the worst crimes does not undermine legislative by restricting penalty’s preserves the the death will application in manner. a rational and constitutional Legisla- protests, however, that “a
The concurrence sensible anticipating the decision would not have enacted ture” LaValle “bear[ ] limited, this does not a reasonable statute which *36 (concur- Legislature the the did enact” resemblance to statute 158). pure judicial guesswork, ring op itas This amounts to support structure, text, no whatsoever in the statute’s finds history—and purpose to does not bother or the concurrence Legislature the and of to claim otherwise. Professions deference unwilling judicial modesty ring reviewing to if is hollow a court especially uphold possible, the where as much of a statute as (here, statutory interpretation and text sources for conventional clearly signal legislative history) course, in this direction.5 Of penalty Legislature always the statute amend death the Supreme Reporters Ct. Surrogates & 5. Our decision Association of [1992]) (79 support not does City v State New York Within N.Y. of circum severability is unavailable in the application proposition that 157). concurring In op 155; op at presented (plurality in this case stances anticipated offset Legislature adopted intended to Surrogates, a statute lag five-day by imposing year 1991-1992 a budgetary for fiscal state shortfalls unrepresented employees of the Unified upon represented payroll both unconstitutionally impaired the System. legislation this We concluded that Court ways, number of as the concurrence observes. The whole point severability salvage doctrine, however, is to as much of Legislature’s possible, handiwork as and to free the Legislature reenacting from the burden of that has al- which ready successfully lawmaking gauntlet. once run the There can Legislature be no doubt that intended to make the death penalty against defendant, enforceable someone like who has multiple first-degree been convicted counts murder. Elderly Terminally and the hypothesizes 70-year-old terminally Defendant a or ill defen- only capital dant who is convicted of one count of A murder. years minimum sentence of 20 to 25 to life would exceed this expectancy, proscriptions defendant’s life but state and federal against punishment imposition cruel and unusual bar would penalty. Accordingly, argues the death defendant that unconstitutionally instruction, deadlock if even not coercive facially applications, some is still unconstitutional because it Eighth violates Amendment. first-degree course,
Of senior do citizens not swell the ranks of According murderers in New York. first-degree defendant, out of 560 prosecutions September murder in New York from through only 5, November one involved year comparable figures terminally old. There no are ill, for the probably prosecu- but it is safe to surmise few of these 560 Assuming tions involved defendants known be near death. prosecutor foolhardy enough in the future seek the death against elderly terminally ill on one capital assuming jury imposes murder, count of that a hearing mitigating sentence, after evidence would presumably age health, dwell on the defendant’s the death represented employees’ employment application contracts. noted that sev- We preserve generate speci- erance purpose—which would the statute’s towas budgetary savings—“[i]n way” level of general unrepresented fied because employees, up statute, who made the employees 10% of covered would subject decided, however, remain application NY2d at We severability First, available two reasons. we stated that (id.). “[significantly” severability there was no clause the statute Then we legislative history, noting Legislature lag turned to had “enacted *37 payrolls prior past on two in the recent of did occasions in neither them it apply legislation only segment employee pool, a provide limited of or (id.). severability for if the statute was invalid as to some of In those affected” sum, Surrogates any suggestion we looked first see whether there was Legislature preferred finding none, severability; the text that the we examined legislative other indicia of intent. difference between this case and Sur- that, rogates rules, point applying opposite is the same the facts directions. Eighth review, or ex- Amendment never survive sentence would (Court (b) proportionality CPL 470.30 under for amination sentence of Appeals to determine “whether mandated of imposed penalty disproportionate to the or is excessive defendant”). considering the crime and both similar cases infringes that the deadlock instruction short, In the notion terminally elderly rights is ill be- and the constitutional yond Amendment in First farfetched; is chimera. Even it mounting party chal- a facial review, where the overbreadth impair- lenge demonstrate “wholesale constitutional need not hypothesized constitu- ment,” the courts look at whether infirmity something insubstantial more than tional is determining [“The overbreadth Barton, at test for 75-76 prohibits real and substantial law on its face whether the (T)he constitutionally protected mere fact conduct. amount of impermissible applications of of that one can conceive some susceptible it overbreadth not render statute is challenge” sufficient to (internal omitted)]; quotation marks and citations see also Broadie, [1975] [upholding Eighth Drug challenged on Laws, Rockefeller which were although facially grounds, “in Amendment as constitutional may particular be found “that some rare case on its facts” unconstitutionally applied”]). the statutes have been (3) Administrative Problems questions catalogs a “host of difficult
Defendant also cripple supposedly enforcement administration” that would instruction where the deadlock the death in those cases constitutionally applied. range These from the fanciful could be (the genetic testing prospect a defendant to assess whether illness) ques- to mundane suffered, risk, a terminal ap- timing. in this In its comment on the merits tions of peal, sole worrying complaint, plurality that the trial this echoes presen- compelled the benefit of a to act without court would be tencing report 390.20; and that of CPL 380.30 and violation Legislature’s “repugnant to the the “new framework” would sort of actuarial have to conduct some intent as the court would analysis defendant’s determine health assessment thorough expected longevity the ex- well as a examination sentencing” require may consecutive istence of convictions 154-155). op (plurality pose point insur- do out, these concerns
As the they largely problems; practical matters are mountable report example, presentencing scheduling. be ordered For *38 immediately jury guilty after hands down a verdict and penalty-phase begins; judge before the trial even a trial should thoroughly may examine the existence convictions that (see require sentencing every consecutive in case Penal Law 70.25). § defendant-specific analysis” a Further, “actuarial is not required—the trial court did not need to in conduct one this subject case. The boils issue down to whether a defendant is lengthy expectancy consecutive sentences so in relation life juror in the United States no rational a could harbor rea- sonable belief that the defendant would ever be released from prison if even deadlocked on the sentence of death or parole;6 parole life without or an actual sentence life without is otherwise mandated. easily capital
The former standard was met in three of the six appeals Court, considered where the defendant was eligible sentencing totaling for consecutive of 100 excess years.7 aged It eliminates the theoretical risk or frail de- year fendant could be executed while “a old who committed 159). op (concurring the exact same crimes could be” evidently approach concurrence does not consider such an to be satisfactory permissible limiting principle constraining or for disagree already explained. I statute. for reasons if But even agree, why explains I were to the concurrence nowhere facially though deadlock instruction is unconstitutional even tables, expectancy 6. Life sourced from the National Center for Health Statistics, commonly they are so used in the courts that are included (see [2007]). Jury Appendix Pattern Instructions 1B NY PJI3d A The most recent edition of PJI includes life on tables the United States based age-specific published rates which were in 1999. These tables project expectancy life years, expec for males born in 1997 at 73.6 and life tancy years for females born 1997 at A 79.4 id. defen necessarily dant years would be at least 18 old born earlier than whatever year specified expectancy PJI, birth is they the life tables in the because are (and updated periodically. Accordingly, unquestionably charge is the deadlock comfortably) defendant, regardless youth age noncoercive whenever a or status, eligible health exceeding widely for consecutive sentences these ac cepted expectancy life numbers for males and females. (2 case, 7. The three are People the defendants in this v Mateo NY3d 383 [2004]) (6 addition, People and Harris. In because the defendant in v Shulman [2005]) killer, might NY3d serial charged have his crimes differently up potential they run had consecutive known necessary this to be to insure a noncoercive deadlock instruction. The [2003]) single- defendants in LaValle and v Cahill were first-degree charge possible victim A murderers. noncoercive deadlock was not light analysis. in these two cases in of the LaValle first-degree constitutionally applied murderer who mandatory life-without-parole crime. also stands convicted of today’s plurality. aspect of decision This Neither does the Legislature’s manifest intention contradicts and frustrates the (5) of the Penal Law when it amended sections 60.06 and 70.00 post -LaValle.
W.
Conclusion apparently to eliminate The crime in this case horrific: robbery, beings in the to seven human were shot the witnesses a range; point-blank a five of them died. After textbook head at capital trial, convicted of six counts of murder defendant was by jury. majority Yet, to of the Court and sentenced a Why? vacates the of death. Not because deadlock sentence judge not, trial was coercive—it was instruction delivered dispute. plurality and the does not the concurrence concedes Taylor’s Instead, John death sentence is vacated because capital Stephen La- trial of deadlock instruction delivered Valle was coercive. say highly is, least, for us declare a
It unusual to ap facially so that its constitutional statute unconstitutional wayside plications along fall with its unconstitutional thing without ones. It is unheard of for us to do such points “holding” explanation. plurality our in LaValle penalty sentencing is statute unconstitu that “the death 155). (plurality op reader, The careful tional on its face” among those the LaValle however, will not discover words self-styled “holdings”; opinion’s reader the careful several constitutionality of facial will not encounter discussion explanation why instruction’s constitutional the deadlock Certainly, applications are not severable. and unconstitutional subject qualitatively and thus different “death (LaValle, reliability” heightened standard of severity unique this not mean that “because of But does given finality death, must be a defendant sentence {id. escape every opportunity at 148-149 possible from it” appellate dissenting]). [R.S. release an J., It does not Smith, parties obligation to furnish from the fundamental court explanation I public for its decision. and the with a reasoned respectfully dissent. Judge Judge Chief Kaye Judge concur with Cipar- Jones Judge separate opinion; concurs Judge result ick; Smith opinion Judges dissents another in which
Read Graffeo concur. Pigott Judgment modified, etc.