Summary
In People v. Sturgis, 86 A.D.2d 775, 448 N.Y.S.2d 61 (4th Dep't 1982), the court held that "the felony murder statute is not unconstitutional in that the doctrine of implied intent creates a mandatory presumption."
Summary of this case from Rosenberg v. HendersonOpinion
January 29, 1982
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Dillon, P.J., Simons, Hancock, Jr., Moule and Schnepp, JJ.
Judgment unanimously reversed, motion to suppress granted and new trial granted. Memorandum: Defendant has been convicted after trial of two counts of felony murder, one count of burglary, third degree, one count of grand larceny, third degree and one count of petit larceny. The charges arise out of an incident during which defendant and another entered an unoccupied motel room and removed a television set and luggage. As they were leaving the parking lot in an automobile, a policeman saw them, became suspicious and followed them. A high speed chase ensued which ended approximately one-quarter mile from the motel when defendant's automobile struck a vehicle entering from a side street and killed the two occupants. Applying standards recently enunciated by the Court of Appeals, the judgment must be reversed and the motion to suppress defendant's postarrest statements granted because they were the result of interrogation taking place after criminal proceedings had commenced and after defendant's right to counsel had attached (see People v. Pepper, 53 N.Y.2d 213; People v. Samuels, 49 N.Y.2d 218) and because the statements were taken from defendant at a time when the arresting officer knew defendant was represented by counsel (see People v Bartolomeo, 53 N.Y.2d 225). Since there must be a new trial, we note briefly that the court did not err in refusing to charge down from felony murder to manslaughter, second degree or criminally negligent homicide (see People v. Schleiman, 197 N.Y. 383, 390; People v. Pierce, 51 A.D.2d 634, 635), and that the felony murder statute is not unconstitutional in that the doctrine of implied intent creates a mandatory presumption (see Westberry v. Mullaney, 406 F. Supp. 407, 415, affd sub nom. Westberry v. Murphy, 535 F.2d 1333, cert den sub nom. Westberry v Oliver, 429 U.S. 889; Guam v. Root, 524 F.2d 195, 197-198, cert den 423 U.S. 1076; and see, also, People v. Fonseca, 36 N.Y.2d 133, 136-137 [dealing with felony assault]).