Summary
In Zane, the defendant was convicted for felony murder "for having caused the death of a fireman in the course of and in furtherance of the crime of arson," despite the fact that the firefighter died after the arson had been completed.
Summary of this case from Langston v. SmithOpinion
July 12, 1989
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Denman, J.P., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: The count of the indictment charging defendant with depraved indifference murder was not defective since it alleged the mental element in the words of the statute (see, People v Fitzgerald, 45 N.Y.2d 574, 578, rearg denied 46 N.Y.2d 837). Moreover, by pleading guilty, defendant waived any challenge to the sufficiency of the factual allegations in the indictment (see, People v Cohen, 52 N.Y.2d 584, 587; People v Thompson, 132 A.D.2d 885, revd on other grounds 72 N.Y.2d 410, rearg denied 73 N.Y.2d 870).
The court properly denied defendant's motion to dismiss the count of the indictment charging defendant with felony murder for having caused the death of a fireman in the course of and in furtherance of the crime of arson. We reject defendant's contention that the felony murder statute, insofar as it applies to the crime of arson, is unconstitutionally vague because it does not define what is meant by "in the course of and in furtherance of such crime". (Penal Law § 125.25.) The statute is sufficiently definite. It is illogical to interpret the statute, as defendant contends, as meaning that the death must occur at the time of the commission of the crime; it need only be caused by the commission of the crime. We agree with the Second Circuit Court of Appeals that the felony murder statute, as applied to the crime of arson, is constitutional (see, Bethea v Scully, 834 F.2d 257).
The suppression court properly denied defendant's motion to suppress the statement that he gave to the police. The finding of the suppression court that the statement was voluntarily given after defendant waived his constitutional rights is supported by the evidence.