The People, Respondent,v.Earl Bell, Jr., Appellant.

Brief

N.Y.March 20, 2013

ALEX SMrTH, ESQ. Attorney at Law 6 NORTH STREET MIDDLETOWN, NEW YORK 10940 (845) 344·4322 Honorable Jonathan Lippman Chief Judge Court of Appeals State of New York Court of Appeals Hall 20 Eagle Street Albany, New York 12207 fax (845) 341·1760 35m i t h 22(a) hvc. fLCO m January 30, 2013 Attn: Honorable Andrew Klein, Clerk Rc: People of the State of Nell' York vs. Earl Bell. Jr. Orange County Indictment # 07·805 Appellate Division Dk! # 08·07302 Dear Mr. Klein : I write this letter·briefpursuant to Ole Court's direc~ve issued under Sec~on 500.11 of Ole Court's Rules of Practice. Earl Bell and Monroe Bussey were named as co-defendants in an Orange County Indictment charging Olem with Inten~onal Murder, Depraved Indifference Murder. Felony Murder (with a predicated of Kidnapping in Ole Second Degree), Kidnapping in the First Degree, and other crimes. They were tried separately, and both were acquitted of Intentional Murder, but convicted on all other counts. The Appellate Division, Second Department, affinned both men 's convictions in separate Decisions and Orders issued March 15, 20 11. This Court granted Bussey's application for leave to appeal , and rendered a decision on May 3, 2012, reported at 19 NY3d 23 1 (2012) This Court vacated Bussey' s Depraved lndifference Murder conviction, and reduced it to Manslaughter in the Second Degree. Bussey was fe-sentenced in Orange County Court pursuant to the Court's order to remit for Page 2 PeopJev Bell resentencing. Alex Smith, Esq. January 30, 2013 This Court rejected Bussey's arguments that his Felony Murder and Kidnapping convictions were based on legally insufficient evidence by reason of the merger doctrine. This Court implicitly rejected the District Attorney's argument that the merger doctrine was not applicable to Kidnapping in the First Degree. Depraved Indifference In Bussey, this Court determined that the People "did not demonstrate that defendant evinced utter disregard for the victim's life to the extent that he did not care whether the victim was killed. Although defendant was acquitted of intentional murder, the evidence tends to support the conclusion that he intended to harm the victim." Bussey, 19 NY3d at 236. This Court concluded that "[b ]ecause the evidence supports the conclusion that defendant was aware of and consciously disregarded the substantial and unjustified risk that his conduct could cause the death of the victim, reducing the depraved indifference murder conviction to manslaughter in the second degree is appropriate." Bussey, 19 NY3d at 236 Bell similarly contends that there was nothing torturous or prolonged in this single-victim beating that would warrant applying this Court's exception to its recent depraved indifference holdings. Nor was the victim, Beary, particularly vulnerable - he was a 20-year old drug dealer. If allowed to stand, the Second Department's holding below in Bell threatens the viability of this Court's single-victim principle as it applies to death by beating, as opposed to death by shooting or stabbing. There were no "compelling circumstances" to submit the twin counts of Intentional Murder and Depraved Indifference Murder to Bell's jury. And there is no reason why this should have been one of those "rare" cases where the twin counts are submitted to the jury. Submission of the twin counts, in effect, put this case into pre-Suarez thinking, and violated Bell's rights to a fair trial as guaranteed by the Sixth Amendment and Article I, Section 2 of the State Constitution and to due process of law as guaranteed by the Fourteenth Amendment and Article I, Section 6 of the State Constitution. It is now rare that depraved indifference murder can be applied to a one-on-one killing because depraved indifference usually applies to a situation in which the defendant Page 3 People v Bell Alex Smith, Esq. January 30,2013 engages in reckless conduct that puts multiple people at risk, such as shooting into a crowd or otherwise endangering innocent bystanders. People v Campbell, 33 AD3d 716 (2nd Dept. 2006) The Suarez Court identified 2 exceptions to this general rule, the first being ''when the defendant intends neither to seriously injure, nor to kill, but nevertheless abandons a helpless and wlnerable victim in circumstances where the victim is highly likely to die, the defendant's utter callousness to the victim's mortal plight-properly establishes depraved indifference murder (citing People v. Kibbe, 35 N.Y.2d 407 ... ), where the defendants robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road, partially dressed and without shoes in sub-freezing temperatures, where he was struck by a passing truck, and killed, and People v. Mills, 1 N. Y.3d 269 ... , where the defendant, without intent to harm or kill his victim, pushed a young boy into the water, watched him submerge without resurfacing (either because the boy had accidentally struck his head or because of an epileptic seizure), falsely infonned his friends in response to their cries to help the victim that he was in fact swimming away, and abandoned the drowning boy to die". People v Suarez, 6 NY3d 202,212 (2005) This first Suarez exception is obviously not applicable at bar given the motive to injure the victim, the viciousness of the beating, and what amounted to a burial in a stream. And any argument that Beary was rendered "helpless" or "vulnerable" after the beating would founder on the common-sense observation that any shooting or stabbing victim would be rendered "helpless" or "vulnerable" after that type of attack. The second exception identified in Suarez "is when the "defendant-acting with a conscious objective not to kill but to harm-engages in torture or a brutal, prolonged and ultimately fatal course of conduct against a particularly wlnerable victim". Taylor, 15 NY3d 518,522 (2010), quoting Suarez, 6 NY3d at 212, citing People v Best, 85 NY2d 826 (1995) (defendant repeatedly beat his nine-year-old son, inflicting large open wounds through which bacteria entered and eventually caused his death); People v Poplis, 30 NY2d 85 (1972) (defendant caused the death of a 3 1I2-year-old child by repeatedly beating her over a course of several days). This second Suarez exception is not applicable at bar because there was nothing about Beary that made him particularly helpless or vulnerable. The trial court recognized this when it deleted that portion of the pattern jury charge applicable to this exception. The Second Department, however, held that Beary was "a particularly vulnerable victim". Page 4 People v Bell Alex Smith, Esq. January 30, 2013 This holding adds a new exception - a potentially broad exception - to the principles of Suarez and its progeny. The Second Department has opened the door for a multitude of arguments that beating victims are ''particularly vulnerable", and that such situations allow twin count submissions. The Second Department's holding in this case is simply not permitted by a straightforward application of Suarez and its progeny. Only this Court could create the bold and broad exception fashioned by the Second Department. BeU's conviction for Depraved Indifference Murder violates his federal and State constitutional rights to due process of law. Kidnapping In Bussey. this Court implicitly rejected the District Attorney's argument that the merger doctrine does not apply to Kidnapping in the First Degree by analyzing Bussey's contention "that he should not be held criminally responsible for kidnapping in the first degree because the acts alleged to constitute kidnapping were merely incidental to and merged with the act of killing the victim." Bussey. 19 NY3d at 237. However, this Court determined that "the merger doctrine does not come into playas the People demonstrated that the acts constituting kidnapping were separate and distinct from the prior acts which led to the victim's death." Bussey. 19 NY3d at 238. This Court concluded that "the acts subsequent to the beating-namely, the asportation of the victim and his death during the asportation or prior to his return-support the separate convictions of kidnapping in the first degree and felony murder." Bussey, 19 NY3d at 238. Bell, like Bussey, contends that the Felony Murder and Kidnapping convictions were based upon legally insufficient evidence and were not proven beyond a reasonable doubt in violation of BeU' s rights to due process of law On a summer holiday evening, while it was still light out, in a crowded urban neighborhood within earshot of a couple dozen people, at least 3 men beat a dope dealer to death or, at the very least, to a point near death. The perpetrators could not leave the body in Bell's back yard. So they taped the victim into a blanket, and placed him in the trunk of Bussey's car. Bussey and Bell's wife believed the victim to be dead. Medical testimony suggests that BeaI)' lived for another hour or two. There is no evidence which suggests that Beary could have survived the serious injuries inflicted upon him prior to his being dumped in the trunk. The beating, therefore, was quite likely inevitably fatal. Nor is there any evidence that Beary was conscious in the trunk. Nor is there any evidence that PageS People v Bell Alex Smith, Esq. January 30, 2013 any of the defendants, including Bell, believed that Beary was alive in the trunk. Bell and his co-defendants had no intent to asport or restrain Beary for any purpose traditionally associated with kidnapping. They were not seeking ransom. They were not seeking to facilitate commission of some other crime. They were, quite simply, seeking to bwyhim. The prosecution successfully used Kidnapping in the Second Degree as a predicate for the Felony Murder conviction -- there was no other predicate available for Felony Murder. The prosecution also successfully obtained a Kidnapping in the First Degree conviction simply by proving that Beary died during the course of his abduction. Bell contends that (1) both crimes should have merged into the crime of intentional murder or assault in the first degree, and (2) the failure of the courts below to require such a merger results in legally insufficient convictions in violation of Bell's right to due process of law. As can be gleaned from both the early New York cases and the experience in other States, the courts have struggled to apply the merger doctrine. It is easy to state that a merger will occur if the restraint is "merely incidental" to another crime, but it is difficult to formulate and apply hard and fast rules to determine what is "merely incidental". This is because there are so many variables that can arise in cases where the merger doctrine may be applicable. Tests such as "duration" or "intensity ofrestramt" may make sense in one context, but not in another. The subtleness of these variables is evident at bar. What if Beary had lived for just one minute in the trunk? Ten minutes? What if the ride was only to the Hudson River, just a couple minutes away? How relevant is the knowledge or belief of death in the minds of the perpetrators? What if Beary was further assaulted in the trunk, or removed from the trunk and then assaulted? Even though the asportation was in effect a burial, Beary died in that burial process. He did not die in a kidnapping gone astray, or a kidnapping grown suddenly violent, or a kidnapping that went on too long. His death, at the point he was placed in the trunk, was premeditated, a foregone conclusion. "The merger doctrine is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility Page 6 People v Bell Alex Smith, Esq. January 30, 2013 may not fairly be attributed to them." Cassidy, 40 NY2d 763, 767 (1976). The People theorized tilat the kidnapping began in the back yard of 34 South Miller and continued in tile trunk of the car to Poughkeepsie. But timt restriction of the victim's movement in the back yard was indistinguishable from the assault. There was no evidence ti13t Beary was forced to go into the back yard. And while there is a permissible inference that Beary was alive in the trunk, the length oflife is pure speculation. There is no evidence tilat Bell or his co-defendants believed til at Beary was alive in that trunk. And dead or alive, the trunk transport was nothing more than a burial process to consummate a murder. There was simply no independent felonious purpose. As in Cassidy, there was no independent abduction ~ the detention of the victim was incidental to the commission of the crimes of assault and attempted sexual abuse. There was no asportation which could be the predicate for conviction of a separately cognizable offense; we cannot accept the contention that, because the assault did not take place on the street in full public view at tile spot where the attack was initiated but rather occurred under cover in a garage about 70 feet away, it should be permissible to prosecute defendant for kidnapping as well. Cassidy, 40 NY2d at 768. And, as in one of the Cassidy companion cases, where the defendant grabbed the victim, pulled her into an automobile at knifepoin~ and then drove around stopping briefly several times to make sexual advances, "the