The People, Respondent,v.William Henderson, Appellant.BriefN.Y.June 1, 2015To Be Argued By: David M. Abbatoy, Jr., Esq. Estimated Time: 15 Minutes STATE OF NEW YORK * COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- WILLIAM A. HENDERSON, Appellant. BRIEF FOR APPELLANT (ORIGINAL) Warren County Indictment Numbers: 2005-5817 and 2010-7148 Brief Completed: August 18, 2014 By: David M. Abbatoy, Jr., Esq. THE ABBA TOY LAW FIRM, PLLC Attorney for William A. Henderson 339 East Avenue, Suite 300 Rochester, New York 14604 Tel: (585) 348-8081 Fax: (585) 851-8669 Email: dma@abbatoy.com TABLE OF CONTENTS Table of Authorities Questions Presented Statement of Jurisdiction and Preservation Procedural History Statement of Facts POINT I: There Was Insufficient Proof of Felony Murder A Introduction B. The Prosecutor Failed to Prove that the Killing Was "In Furtherance of' the Burglary C. The Felony Murder Charge Improperly "Double Counts" the Same Mens Rea That Elevates Trespass to Burglary D. Conclusion POINT II: The Lower Court Erred by Refusing to Charge the Lesser-Included Offense of Manslaughter in the Second Degree A Introduction B. There Was a Reasonable View of the Evidence that Mr. Henderson Committed the Lesser Offense, But Not the Greater C. The Appellate Division Failed to Recognize that the Prosecutor Made Two Important Concession in the Court of Arguing the Charge-Down Issue D. Conclusion 1 2 5 7 16 16 19 32 46 47 47 51 61 64 POINT II: The Lower Court Erred by Refusing to Grant a Missing Witness Charge A. Introduction B. The Law Regarding a Request for a Missing Witness Charge C. The Lower Court Erroneously Ruled that Mr. Mathes Was Unavailable for Testimony D. Conclusion CONCLUSION 65 65 67 68 74 75 TABLE OF AUTHORITIES State Cases People v Arroyo, 93 NY2d 990 [1999] People v Asan, 22 NY2d 526, 529-30 [1968] People v Bleakley (62 NY2d 490, 495 [1987] People v Bornholdt, 33 NY2d 75,82 [1973] People v Brown (67 NY2d 555 [1986] People v Cahill, 2 NY3d 14 [2003] People v. Cassidy, 40 NY2d 762 [1976] People v. Castillo, 178 AD2d 113,114 [2d Dept 1991] People v Concepcion, 17 NY3d 192 [2011] People v Couser, 12 AD 3d 1040 [4th Dept 2004] People v DiBella, 277 AD 3d 699 [3d Dept 2000] People v Dinser, 192 NY 80 [1908] People v. Dolan, 40 NY2d 763 [1976] People v Douglas, 17 AD 3d 380, 381 [2d Dept 2005] People vErts, 7 NY2d 872, 874 [1988] People v Evans, 232 AD2d 275 [1st Dept 1996] People v. Geaslen, 54 NY2d 510 [1981] People v George, 43 AD 3d 560 [3d Dept 2007] 21 53 54 21,24 41 17-18,24-46 45 45 68-69 43 55,57 52 45 55, 58-59 68 51 45 58 People v. Gladman, 41 NY2d 123, 129-130 [1976] People v Glover, 57 NY2d 61 [1982] People v Gonzalez, 1 NY 3d 464 [2004] People v Gonzalez, 68 NY2d 424 at 427 [1986] People v Greene, 111 AD2d 183, 184 [2d Dept 1985] People v Green, 56 NY2d 427 [1982] People v Grimes (289 AD2d 1072 [4th Dept 2001] People v. Heath, 203 AD2d 17 [1st Dept 1994] People v Hedgeman, 70 NY2d 533, 537 [1987] People v Heiliger, 96 NY2d 462 [2001] People v Henderson, 110 AD 3d 1353[3d Dept 2013] People v Hernandez, 82 NY2d 309,317 [1993] People v Horton, 9 AD 3d 503 [3d Dept 2004] People v Joyner, 26 NY2d 106, 110 [1970] People v Kitching, 78 NY2d 532, 536 [1991] People v LaFontaine, 92 NY2d 470 [1988] People v Lucas, 11 NY3d 218, 221 [2008] People v Macana, 84 NY2d 173, 180 [1994] People v Martin, 59 NY2d 704 [1983] 21,24 51 61 67-68,70 44 51 73 21 35 61 7,50 20-21, 24 63 21 67 67 19, 37-43, 63 67 53 People v Miller, 32 NY2d 157 [1973] People v Morahan, 154 AD2d 848 [3d Dept 1989] People v Quinn, 162 AD2d 368 [1st Dept 1992] People v Rivera,_ NY3d--' 2014 WL 1356233 [2014] People v Richardson, 36 AD2d 25,29 [4th Dept 1971] People v Robinson, 145 AD2d 184 [4th Dept 1989]; affd on opinion below, 75 NY2d 879 [1990] People v Robles, 173 AD2d 377 [1st Dpet 1991] People v Shapiro, 96 AD2d 626 [3d Dept 1983] People v Sleasman, 241 AD3d 1041 [3d Dept 2005] People v Stridiron, 33 NY2d 287, 290 [1973] People v Swansbrough, 22 AD 3d 877 [3d Dept 2005] People v Trappier, 87 NY2d 55 [1995] People v Umana, 158 AD2d 492 [2d Dept 1990] People v Versaggi, 83 NY2d 123, 129 [1994] People v Wood, 8 NY2d 48 [1960] Southbridge Finishing Co v Golding, 208 Mise 846 [1955]; affd 2 AD2d 882 [1st Dept 1956] State of New York v Skibinski, 87 AD2d 974 [4th Dept 1982] 17, 28, 39-44 55,58 44 28 54 61 62 52 62 55-58 30-31 61 44 22 20 73 73 Federal Cases Godfrey v Georgia, 446 US 420, 428 [1980] Hoffman v United States, 341 US 479,486 [1951] Langston v Smith, 630 F3d 310 [2d Cir 2011] Morrissette v US, 342 US 246 [1952] Statutes CPL § 300.50 CPL § 450.90[1] CPL § 460.10[1] CPL § 460.20[2][a][i] CPL § 470.05[2] CPL § 620.20[1] Judiciary Law§ 750 Judiciary Law§ 750[5] Penal Law§ 10.00[10] Penal Law§ 15.05[1] Penal Law§ 15.05[3] Penal Law§ 70.02[2][a] Penal Law§ 70.02[3] Penal Law§ 120.05[1] 33 73 29-30 52 51 4 4 4 4 72 72 73 24 53 53,60 20 20 2 Penal Law§ 120.05[6] 31 Penal Law§ 120.10[4] 29 Penal Law§ 120.15 25 Penal Law§ 125.15[1] 48,59-60 Penal Law§ 125.20[1] 2,48,60 Penal Law§ 125.25[1] 35 Penal Law§ 125.25[3] 2,19,23 Penal Law§ 125.27[1][a][vii] 25,37 Penal Law§ 135.25[3] 38 Penal Law§ 140.05 36 Penal Law§ 140.10 36 Penal Law§ 140.15 36 Penal Law§ 140.17 36 Penal Law§ 140.20 36 Penal Law§ 140.25 36 Penal Law§ 140.30 36 Penal Law§ 140.25[1][b] 2 Penal Law§ 140.25[2] 2 Penal Law§ 140.30[2] 2 QUESTIONS PRESENTED (1) Did the prosecutor present sufficient evidence that the homicide was uin furtherance of" an enumerated felony for the purposes of the felony murder statute? Answer in Trial Court: Yes. (2) Assuming arguendo, there was sufficient evidence of the I( in furtherance of element", did the proof I( double count" the defendant's alleged intent to kill as an element of both the burglary and the felony murder charges? Answer in Trial Court: No. (3) Did the lower court err by refusing to deliver a jury charge regarding the lesser-included offense of Manslaughter in the Second Degree? Answer in Trial Court: No. ( 4) Did the lower court err by refusing to grant a missing witness charge? Answer in Trial Court: No. 1 STATEMENT OF JURISDICTION AND PRESERVATION On May 20,2011, a Warren County jury found Mr. Henderson guilty of the following crimes: •!• Manslaughter in the First Degree (Penal Law§ 125.20[1]); •!• Murder in the Second Degree (Penal Law§ 125.25 [3]); •!• Burglary in the First Degree (Penal Law§ 140.30 [2]); •!• Assault in the Second Degree (Penal Law§ 120.05 [1]); •!• Burglary in the Second Degree (Penal Law§ 140.25[1][b]); and •!• Burglary in the Second Degree (Penal Law§ 140.25 [2]). (Appendix [((A"] at 732-734). On June 15, 2011, the Warren County Court (Hon. JohnS. Hall, Jr.) sentenced Mr. Henderson and issued a final judgment of conviction (A at 5-6, 735). Mr. Henderson filed and served a Notice of Appeal from the judgment on June 20,2011, which was within thirty days of the conviction (A 1-3). Thereafter, Mr. Henderson perfected his appeal to the Appellate Division, Third Department On October 31,2013, that court affirmed Mr. Henderson's conviction (A 815). Thereafter, Mr. Henderson filed a timely application for leave to appeal, and that application was granted by Hon. RobertS. Smith on May 12, 2014 (A 814). 2 Mr. Henderson contends on this appeal, in accord with the same arguments he made at the trial level, that there are three bases for reversal. First, Mr. Henderson argues that there is insufficient evidence of felony murder (Point I, below). He argues on appeal, as he did in the trial court that the evidence did not satisfy the {lin furtherance of" element of felony murder and, moreover, that the proof {I double counted" the intent to kill. Mr. Henderson's trial attorney preserved an issue of law for review by making a motion to dismiss the indictment at the end of the proof (A 549-5 64) and by making a motion to set aside the jury's verdict (A 738-740). On each occasion, the judge and prosecutor directly addressed the defendant's arguments and denied the repeated motions. Second, Mr. Henderson argues that the lower court erred by refusing to deliver a jury charge regarding the lesser-included offense of Manslaughter in the Second Degree (Point II, below). Defense counsel made an oral motion requesting the charge at the charge conference following the close of all proof (A 583). The judge directly addressed defense counsel's request and denied the motion (A 585). Finally, Mr. Henderson argues that the lower court erred by refusing to give a missing witness charge (Point III, below). Defense counsel made a 3 motion requesting the charge at the end of the prosecutor's case-in-chief, and the judge denied the motion (A 566-575). Moreover, the Appellate Division, Third Department addressed each of the foregoing arguments on the law, without resorting to its it interest of justice" jurisdiction (A 815-817). As a result, this Court has jurisdiction to entertain this appeal pursuant to Article 6, § 3 of the New York State Constitution, CPL § 450.90(1), CPL § 460.10(1), CPL § 460.20(2)(a)(i), and CPL § 470.05(2). 4 PROCEDURAL HISTORY A Warren County Indictment dated September 14, 2005 charged the defendant, William Henderson, as follows: o Count #1: Murder in the Second Degree (intentional murder); o Count #2: Murder in the Second Degree (felony murder); o Count #3: Burglary in the First Degree; o Count #4: Assault in the Second Degree; o Count #5: Burglary in the Second Degree; o Count #6: Burglary in the Second Degree. (A 6). All of the charges arose out of an incident that took place in the early morning hours of September 9, 2005 at the Henry Hudson Townhouses in Glens Falls, New York (A 6-9). The indictment alleged that Mr. Henderson and two other men entered a dwelling where a person named Duncan Chambers resided and that Mr. Henderson stabbed and killed Mr. Chambers, and injured another person (A 6-9). This matter first proceeded to a jury trial in 2006 (A 10-16, 18). At the first trial, the jury acquitted Mr. Henderson of intentional murder, but convicted him of Manslaughter in the First Degree as a lesser-included offense 5 (A 10-16). The jury also convicted him of felony murder and the associated burglary and assault charges (A 10-16). On June 17, 2010, the Appellate Division, Third Department reversed Mr. Henderson's conviction and remanded for a new trial on the grounds that the trial court improperly discharged a sworn juror (A 10-16; People v Henderson, 74 AD3d 1567 [3d Dept2010]). Upon remand, the prosecutor re-presented the matter to the grand jury and secured a new indictment for Manslaughter in the First Degree (A 17, 21-2 2). The trial court consolidated that indictment with the old one, and the matter proceeded to trial without the intentional murder count (A 17, 21-22). Following the re-trial, the jury found Mr. Henderson guilty of manslaughter in the first degree, felony murder, burglary in the first and second degrees, and one count of assault in the second degree (A 26). The jury acquitted him of one count of assault in the second degree (A 26). The trial judge sentenced Mr. Henderson to concurrent terms of 2 5 years to life for the felony murder, 2 5 years (plus 5 years of PRS) for the manslaughter, 2 5 years (plus 5 years of PRS) for the first degree burglary, and seven years (plus 3 years of PRS) for the assault charge (A 735-766). He also sentenced Mr. Henderson to concurrent terms of five years of 6 imprisonment (plus 5 years of PRS) for the second degree burglaries, and these sentences were order to run consecutive to the aforementioned sentences (A 735-766). Thus, Mr. Henderson's aggregate sentence is 30 years to life, plus five years of post-release supervision. Mr. Henderson appealed this second conviction to the Appellate Division, Third Department, but the court affirmed his conviction on October 31,2013 (A 1, 815-817; People v Henderson, 110 AD3d 1353 [3d Dept 2013]). This Court granted leave to appeal on May 12, 2014, and this appeal followed (A 814). 7 STATEMENT OF FACTS Gerald ({Jamal" Mathes was a drug dealer in the Henry Hudson Townhouse Complex in Troy, New York (A 38-44). The defendant, William Henderson, is Mr. Mathes's cousin (A 621). Mr. Mathes employed a resident of the townhouses, a woman named Ariane ({Annie" Eastman, to help him distribute drugs in the apartment complex (A 38-42). In exchange for her services in distributing crack cocaine from the apartment, Mr. Mathes paid Ms. Eastman's cable bill (A 42). Ms. Eastman stored the drugs and cash from her sales in a red lockbox that she kept on the top shelf of her pantry (A 44). On the evening of September 8, 2005, Mr. Henderson came to Troy to visit his cousin, Mr. Mathes (A 621). Mr. Henderson had met Ms. Eastman approximately one week earlier (A 38), and did not know that she was involved in the drug trade at the townhouses (A 4 79). Two of Ms. Eastman's regular customers were people known to her as ({Matt" and ({Angel", who lived in another nearby apartment in the Henry Hudson complex (A 42). At times, Matt and Angel also acted as distributors for Ms. Eastman; they would take drugs to a local bar, sell them, and return to Ms. Eastman with the money, which she deposited in the red lockbox and later gave to Mr. Mathes (A 49). 8 At approximately midnight on September 9th, a friend called Ms. Eastman and asked her to go out to a local bar (A 50). Ms. Eastman testified that around that same time, Mr. Henderson arrived at the apartment with Mr. Mathes, Angel, and a person known as McJohnny Solis (A 51). Angel purchased $200 worth of crack from Mr. Mathes and left the apartment (A 54). When Mr. Mathes left the apartment with Mr. Henderson and Mr. Solis, Mr. Mathes asked Ms. Eastman to keep her back door unlocked so that he could return to the house later and pick up more cocaine, if needed (A 57). Ms. Eastman said that she went out to the bar, got drunk, and returned home at around 4am to find that the pantry door was open and the lockbox was missing (A 61). Ms. Eastman called Mr. Mathes, and he came to the apartment with Mr. Henderson and Mr. Solis (A 62). When Mr. Mathes arrived, Ms. Eastman told Mr. Mathes that Matt or Angel must have taken the box (A 63). According to Ms. Eastman, the three men walked over to apartment 48F where Matt and Angel lived (A 63-6 7). Matt and Angel were sleeping inside of apartment 48F. Another couple, Duncan Chambers and Kendra Morelli, was sleeping in another bedroom after having spent the evening smoking crack with Matt and Angel (A 311, 9 362).1 Ms. Morelli testified that at 4am, she heard a crash in the apartment (A 315). She opened the bedroom door and saw two unidentified black males coming up the stairs asking, "where the fuck is Matty" (A 316). Duncan Chambers, the eventual victim of the stabbing, told the men that they "needed to get the fuck out" (A 317). Both of the intruders, one of whom Ms. Morelli said was the defendant, started punching and attacking Duncan (A 3 2 0). Ms. Morelli testified that Mr. Henderson "started to beat the crap out of [her]", but Mr. Chambers intervened and hit Mr. Henderson over the head with a VCR (A 320 [Mr. Henderson was acquitted of the assault on Ms. Morelli, see A 26]). Mr. Henderson and Mr. Chambers continued to engage in a fistfight until Ms. Morelli said that the police were on their way, and the men left the apartment (A 321). After the fight, Mr. Chambers went into the bathroom and spit up some blood (A 322). He also discovered that he had some cuts on his face (A 322). Ms. Morelli testified that she was sore as a result of the fight and had some 1 Ms. Morelli testified at trial that she smoked so much crack that she did not remember giving a statement to police (A 360). She further said that "I was giving them a statement I don't know what I was saying, but I know that I did not want to get in trouble and I know I did not want my boyfriend to get in trouble, so I said whatever I could to protect me and Duncan" (A 360). 10 minor scrapes (A 324). Ms. Eastman testified that she went over to Matt and Angel's apartment to see what was happening, and when she arrived, she saw Mr. Henderson, Mr. Mathes, and Mr. Solis coming out of the apartment (A 69). Mr. Henderson had blood on his shirt was uactingmad" (A 70). According to Ms. Eastman, Mr. Henderson went back to her apartment, grabbed a kitchen knife, and said uhe was going to kill him" (A 73). While Mr. Chambers and Ms. Morelli were still in the bathroom, McJohnny Solis entered the apartment and asked Mr. Chambers and Ms. Morelli to help him find his keys (A 327). Mr. Chambers gave Mr. Solis his keys, and Mr. Solis left the apartment (A 327). Ms. Morelli testified that Mr. Henderson and Mr. Mathes came into the apartment after Mr. Solis left (A 327). Ms. Morelli said that one ofthe men had a usharp object" in his hand, but she was unsure who it was: ul seen it in his [Mr. Henderson's] hand. At the time, I didn't know it was him. Now I'm pretty sure ... I can't really say that I can positively remember if it was him or Jamal... Well, it was dark, (A 329). and I can honestly say that I believe I know that it was a knife. Now I do, but at the time, I didn't" 11 Ms. Morelli also testified that (([o]ne of them also had a bottle in their hand, so I can't say that I'm positive it was William Henderson with the sharp object" (A 392). Ms. Morelli ran out of the apartment before anything happened (A 329). She heard glass shatter as she ran out of the apartment (A 393). Moments later, Ms. Morelli saw Mr. Chambers collapse on the porch outside of the apartment (A 334). Mr. Chambers had glass shards on top of his head and blood was pouring out of his back; he said ((baby, I think they stabbed me" (A 333). After that, Mr. Henderson stepped out of the apartment, ran to the driver's seat of a Green Dodge Neon and sped away (A 335 [another person was in the passenger seat]). Jamal Mathes exited the apartment next (A 335). Mr. Mathes ran into the apartment complex and he changed his clothes, but was arrested a short time later after Ms. Morelli identified him as one of Mr. Chambers' attackers (A 339-340). Mr. Henderson testified at the first trial, and his testimony was read into the record at the retrial (A 40 1-542). He testified to a version of events different from the above. First, although the prosecutor implied that Mr. Henderson was also an employee of Mr. Mathes' drug operation, Mr. 12 Henderson denied ever being a part of the enterprise (A 415). He admitted that he knew Mr. Mathes and Ms. Eastman sold drugs out of the apartment, but had no involvement in the business (A 417). Mr. Henderson said he went to a bar in Glens Falls on September 9th with Mr. Mathes and Mr. Solis and had several drinks (A 419-420). When he arrived back at the apartment, Duncan Chambers was standing on the porch of Apartment 48F and said to Mr. Henderson he was, ((tired of us niggers coming around here selling drugs" (A 425). When Mr. Henderson confronted Mr. Chambers, Mr. Chambers threw a bottle that struck Mr. Henderson in the face (A 425). Mr. Henderson chased Mr. Chambers into apartment 48F where they began to wrestle and fistfight (A 428). Mr. Henderson said that during the altercation, Mr. Chambers hit him in the head with a VCR, and Ms. Morelli hit him over the head with a glass bottle before he left the apartment (A 429-431). Mr. Henderson further admitted that he went back to Ms. Eastman's apartment, got a knife and brought it back to apartment 48F to confront Mr. Chambers (A 432). Upon his return, Mr. Chambers continued to antagonize Mr. Henderson and was saying ufuck you, nigger [and] things of that nature" (A 432). According to Mr. Henderson, the men began to fight again, and when Mr. Chambers tried to punch Mr. Henderson, the defendant stabbed Mr. 13 Chambers in the back (A 435). Mr. Henderson said ((I didn't intend to kill him. I mean I'm not going to lie. I wanted to hurt him like he hurt me with the bottle, then the VCR, but I didn't want to kill him" (A 435). Police responded to the scene immediately, and one police officer arrived in time to see the green car driving away (A 220). He pursued the car and stopped it within about 10-15 seconds ofleaving the townhouses (A 253). Mr. Henderson was driving and McJohnny Solis was in the passenger seat (A 216). The police took the men to police headquarters where Mr. Henderson gave a statement to police that was largely consistent with his trial testimony (A 277-281). The autopsy report and testimony of the medical examiner confirmed that Mr. Chambers died of a single stab wound to the upper-left part of his back (A 819-824). The wound was five inches deep (A 819-824). The knife punctured Mr. Chambers' lung and struck a large artery known as the aorta, causing Mr. Chambers to bleed to death (A 819-824). As noted above, the jury convicted Mr. Henderson of manslaughter and felony murder (A 26). The jury convicted him of burglary in the second degree and an assault on Mr. Chambers related to the first entry into 14 apartment48F (A 26). The jury also convicted him of burglary in the first and second degrees related to the second entry that resulted in the stabbing (A 26). For the reasons stated below, Mr. Henderson's conviction should be reversed, the felony murder count should be dismissed, and he should be granted a new trial. 15 POINT I: THERE WAS INSUFFICIENT EVIDENCE OF FELONY MURDER A. Introduction: In the light most favorable to the government, the proof showed that Mr. Henderson engaged in a fight with Duncan Chambers because he believed that Mr. Chambers was responsible for the theft of his cousin's drugs and money. After Mr. Chambers hit him over the head with a VCR, Mr. Henderson retreated, grabbed a knife, and announced that he was {(going to kill him" (A 73, 175). With that as a preface, Mr. Henderson returned to the apartment, entered without permission, and killed Mr. Chambers by stabbing him with the knife (A 329-334). There was no testimony that he went to the apartment for any other reason and, indeed, Mr. Henderson killed Mr. Chambers just like he said he would before leaving. On appeal, the Appellate Division endorsed this factual viewpoint that Mr. Henderson returned to the apartment a second time intent on revenge: u[d]efendant went to the victim's apartment and accused the victim of stealing his crack cocaine. When a fight ensued and defendant was forced to retreat, he obtained a kitchen knife from a friend's nearby apartment ~to even the odds' and returned to the victim's apartment As the two men grappled, defendant fatally stabbed the victim" (A 816). 16 At the end of the proof, defense counsel moved to dismiss the felony murder count Defense argued: (A 549). u[i]n that count, they have relied on burglary as being the the predicate crime which raises it to the level of being murder once a death is caused. Now, it's our position that that is improper to use the same crime as a predicate of itself. In other words, the instant matter, the People are asserting that Mr. Henderson after the break goes back, gets a weapon, goes back, and he goes back with the intent to commit an assault, and any murder case or any manslaughter, assault is part of that, and underneath the merger doctrine, if you go back to commit the crime, there has to be some other type of crime in order to establish burglary. They have not established any other crime other than the alleged intent to kill or to cause an assault on Duncan Chambers. It's our position that that basically is a circular argument" Defense counsel further argued that u[i]fwe looked at it every time we had an assault that was in a house and a death occurred, then it would be a murder case, and that's not what was the intent of the legislature" (A 5 51). In making this argument, defense counsel principally relied upon two cases, People v Cahill (2 NY3d 14 [2003]) and People v Miller (32 NY2d 157 [1973]), discussed at length below. The prosecutor responded to this argument by describing how Mr. Henderson's burglary was tlin the course of" and uin furtherance of" the 17 homicide by saying: u[t]he second entry, he goes in there with a knife. The defendant could have possessed that knife with intent to menace Duncan Chambers. He could have possessed that knife, which is unlawful purposes [sic], it would be a criminal possession of a weapon in the third degree because of his prior criminal convictions, it would be a felony. Even without prior criminal convictions, it would be a criminal possession of a weapon in the fourth degree, a class A misdemeanor. Under either theory, he was going to possess that knife unlawfully inside that dwelling with no permission or authority to enter into that dwelling. There's your burglary. Under our theory as well, he was going in there to find those drugs if they were there. Whatever the quantity of drugs, however small or large, at a minimum, it's a possession of a controlled substance in the seventh degree, a class A misdemeanor" (A 555-556). The lower court denied the motion to dismiss, and defense counsel took exception to the ruling (A 563-564; T 1686-1687). Defense counsel reiterated his position after the jury delivered its verdict and asked the lower court to set aside the verdict on the felony murder count (A 732-735). The prosecutor again opposed the motion on the same grounds, and the judge denied the motion (A 740). As discussed below, it is Mr. Henderson's position that pursuant to 18 People v Cahill (2 NY3d 14 [2003]) and the subsequent cases interpreting Cahill, the evidence of felony murder was insufficient The proof failed to establish an essential element of felony murder and, moreover, improperly double-counted a single criminal intent to increase the penalty against Mr. Henderson (People v Lucas, 11 NY3d 218,221 [2008]). B. The Prosecutor Failed to Prove that the Homicide was uln Furtherance Of" the Burglary A person is guilty of felony murder when he kills a person uin the course of" and "in furtherance of" certain enumerated felonies (Penal Law§ 125.25[3]). Burglary is one of the enumerated felonies. For the purposes of this appeal, there is no debate that Mr. Henderson committed a burglary when he entered the residence with the stated intent of killing Mr. Chambers. Put differently, there is no debate that this homicide took place "in the course of' a burglary. The question that the prosecutor has never answered is "How did the homicide further the commission of the burglary?" The jury convicted Mr. Henderson of Manslaughter in the First Degree, but the question is whether the prosecutor provided the fact essential to elevate that lower level of homicide and punish it in same way that the Penal 19 Law punishes intentional homicide.2 In New York, the prosecution must establish both that the death was caused (lin the course of" and (lin furtherance of" an enumerated felony. Essentially, these two qualifiers impose upon the government the requirement of proving (1) a temporal relationship to the underlying felony ((lin the course of"); and (2) the killing's logical connection and nexus to the accomplishment of the underlying felony Cin furtherance of"). Over fifty years ago, this Court emphasised the importance of the (lin furtherance of" element: (Ia felony murder embraces not any killing incidentally coincident with the felony ... but only those committed by one of the criminals in the attempted execution of the unlawful end. Although the homicide itself need not be within the common design ... the act which results in death must be in furtherance of the unlawful purpose" (People v Wood, 8 NY2d 48, 51 [1960]). Thirty years later, in People v Hernandez, this Court reaffirmed Wood and held that the (lin furtherance of' language could not be regarded as superfluous because the language serves an important limiting function on 2 Manslaughter in the First Degree is a B-Felony and carries a maximum sentence of 25 years determinate (Penal Law§ 70.02 [3]). Murder in the Second Degree, under a theory of felony murder or intentional homicide, is an A-Felony with a maximum sentence of life in prison (Penal Law§ 70.00[2] [a]). 20 the applicability of the statute (82 NY2d 309, 317 [1993]). In accord with Wood, this Court also held in People v Bornholdt, that, "a person may be convicted of felony murder only if it be proved that he or another participant in one of the enumerated felonies killed {in the attempted execution of the unlawful end"' (33 NY2d 75, 82 [1973]; see also People v Joyner, 26 NY2d 106, 110 [1970]). In People v. Gladman, this Court held that the jury could properly find that defendant killed an officer "in the course of and in furtherance of' immediate flight from a robbery only if it concluded that he shot the officer "to make good his escape with the loot" (41 NY2d 123, 129-130 [1976]). In other contexts the Penal Law's use of the phrase "in furtherance of" has been similarly interpreted to denote advancing or promoting the specified criminal conduct on purpose (see, People v Arroyo, 93 NY2d 990 [1999] [overt act "in furtherance of'' conspiracy is act that tends to carry out the conspiracy]; People v. Heath, 203 AD2d 17 [1st Dept 1994] [wearing of body vest is is "in furtherance of'' crime if it is done to promote the commission of the crime]). These descriptions of the "in furtherance of" element are in accord with the lexical definition of that phrase (People v Versaggi, 83 NY2d 123, 129 21 [1994] [where the Legislature has not defined a statutory term, this Court must give the word its ordinary meaning]). The dictionary meaning of "furtherance" is a "helping forward" or "advancement" or "promotion" (Webster's Third New International Dictionary of the English Language Unabridged, 924 [1993]). Therefore, causing death "in furtherance of" a felony requires that the death be caused in order to "advance" or "promote" the underlying felony. The facts as affirmed by the appellate division show that Mr. Henderson returned to the apartment with a knife "to even the odds". Based on Ms. Eastman's testimony, there should be no doubt that he was "going to kill him" (A 73) and that was the sole purpose for the illegal entry. However, Mr. Henderson could not commit the homicide without first committing the burglary. Therefore, the homicide did not "advance" or "promote" the burglary. Rather, the burglary was the means toward accomplishing the homicide. The prosecutor has never described how the homicide promoted the burglary. Indeed, based on all of the facts, it appears that the inverse was true: the commission of the burglary promoted the homicide. At trial, the prosecutor argued that the homicide was committed to further his criminal 22 possession of a weapon or to take possession of a controlled substance, but those are not enumerated felonies (A 555-556). On summation, he said that "[i]fyou believe him, that's felony murder right there. Enter a building a dwelling with intent to commit a crime inside. And what crime? Assaults. Possession of a weapon. Menacing. There's so many crimes to consider that he was going to commit when he went in there" (A 64 7). The prosecutor also argued, ""did he have intent to commit a crime when he went into that building? If you believe that he did, and then while inside he caused Duncan Chambers' death, he has committed felony murder" (A 649). However, the prosecutor over-simplified the analysis for felony murder and made the mistake of describing felony murder as simply a homicide that occurs during a burglary, without regard to the "in furtherance of" language. The prosecutor similarly failed on appeal to identify how the homicide furthered the accomplishment of the burglary: "[t]his evidence certainly permitted the jury to conclude that the defendant intended to assault if not murder Duncan when he entered the apartment and that the caused Duncan's death in furtherance of that intent Certainly, stabbing Duncan ~furthered' the defendant's stated desire to hurt Duncan. Indeed, it was the culmination of his assault on Duncan" (Respondent's Appellate Division Brief at A 798-799). 23 In short, the prosecutor's argument at trial and at the appellate division was that the homicide promoted an assault. Of course, assault was long-ago removed as an "enumerated felony" because every homicide necessarily begins with an assault, and therefore it is tautological to say that a homicide promotes an assault. The prosecutor is likely to respond that the intent to assault supports the felony that underlies the already-completed burglary, but this still does nothing to explain how the homicide promoted that burglary. Instead, that counter-argument is simply an observation that the homicide took place "in the course of" a burglary, which is an element of felony murder not in question on this appeal. This Court's decision in People v Cahill (2 NY3d 14 [2003]) is a common-sense application of the legal principles stated in Wood, Hernandez, Bornholdt, and Gladman, all of which were decided before Cahilf.3 In Cahill, the defendant brutally beat his wife. The injuries put the wife into a coma, and Mr. Cahill was charged with assault and other crimes. As a result, a court also issued an order of protection preventing Mr. Cahill from having contact with the wife. While the wife was still in the hospital, Mr. Cahill disguised 3 As discussed in Point I(C), below, this Court limited some of its analysis in Cahill to capital murder cases only. However, the interpretation of the "in furtherance of' language is not unique to the capital murder statute and, therefore, is not subject to that limitation. 24 himself as a janitor, snuck into the hospital after hours, and killed his wife by poisoning her with cyanide. Cahill was charged under New York's now-defunct capital murder statute, which imposed the death penalty for committing an intentional murder in the course of and furtherance of second degree burglary (Cahill, 2 NY3d at 35-36; see former Penal Law§ 125.27[1] [a] [vii]). This Court reversed the capital murder conviction. In Section III(B) of the Cahill decision, this Court ruled that Mr. Cahill's conviction under Penal Law§ 125.27(1)(a)(vii) was not supported by legally sufficient evidence. This decision was based upon two analyses. First, this Court ruled that as a matter of statutory interpretation a conviction for capital murder under this theory could not stand because {(the capital murder statute contemplates a felonious intent independent of the murder itself'' (Cahill, 2 NY3d at 64).4 As a second part of the double-counting analysis under Section III(B), this Court also explored the decisions of various sister-states regarding whether Cahill's killing was {(in furtherance of'' the burglary. This Court adopted the rationale of an Arkansas case by the name of Parker v State, 4 Mr. Henderson argues in Point I(C), below, that the same "double-counting" should invalidate his conviction for felony murder, but the argument here is that there was simply no proof of the "in furtherance of element". Cahill also recognized this failure under essentially identical facts. 25 which invalidated a felony murder conviction under a statute similar to New York's (292 Ark421, 731 SW2d 756 [1987]). In Parker, the Arkansas court reversed the defendant's conviction of felony murder based on burglary. The evidence showed that the defendant had chased his estranged wife's father into his house and killed him and his wife there. The court concluded that, u[t]he killings were obviously a form of criminal homicide of some degree, but they were not (in the course of and in furtherance of the burglary as required to be capital felony murder" (Parker, 731 SW2d at 758). In adopting Parker's rationale, this Court explained its holding as follows: (([t]he Parker court stressed that the Arkansas statute required that the murder be committed in the course of and (in furtherance of the felony. The court pointed out that Parker did not commit the murder (in furtherance of the burglary and that the very opposite was true: he committed the burglary in furtherance of his intent to kill his victim" (Cahill, 2 NY3d at 69; see also Williams v State, 818 A2d 906, 908 [Del2002]: ((if the intent of the burglary was to commit murder, the death that occurred was not (in furtherance of' the burglary"). This Court further stated its agreement with the Parker court's conclusion. Although this Court did not address whether the killing was ((in 26 furtherance of the burglary", it said: u[i]t is certain that the converse is true-- defendant committed the burglary to further his intent to kill his wife. That being so, the burglary was not meaningfully independent from the murder. Defendant's trespass on the hospital premises was merely a prerequisite to his committing the murder -- an enabling measure that had no purpose or substance other than to serve his only goal, to kill his victim" (Cahill, 2 NY3d at 70). It should be obvious that the facts in Cahill and Parker are quite similar to Mr. Henderson's case. In Cahill, the defendant entered the hospital with the intent and motive to kill. His intent was made clear by his disguise and his possession of a lethal poison. The only thing that could have made Cahill's intent clearer would have been a statement that he was {I going to kill her". Similarly, Mr. Henderson entered apartment 48F with a knife, intent on ueven[ing] the odds" (A 816). If there was any doubt about what he would do, he announced it before going to the apartment by saying that he was {I going to kill him" (A 73). To further make it clear that Mr. Henderson's only intent was to kill, the trial judge explicitly denied his request to charge Manslaughter in the Second Degree because, tt[h] e said he was angry. He wanted to get back at him ... He 27 wanted to hurt him back. I don't see any version of the facts that would indicate that there was a reckless manslaughter" (A 584-585). Indeed, when this Court recently decided People v Rivera(_ NY3d _, 2014 WL 1356233 [2014]), it also cited Mr. Henderson's case as a classic example of a killing that could only be intentional. Even the prosecutor admitted at the appellate division when arguing against Mr. Henderson's request to charge Manslaughter in the Second Degree that the proof showed that "the defendant clearly admitted intentional conduct, thereby negating any theory of recklessness" (Respondent's Appellate Division Brief at A 809). Thus, as in Parker and Cahill, "it is certain that ... defendant committed the burglary to further his intent to kill [the victim]". There is no other view of the evidence in the light most favorable to the prosecutor and therefore the felony murder charge must be dismissed.5 After Cahill, other courts have applied its rationale regarding the "in furtherance of' element, without addressing the double-counting rationale 5 It is anticipated that the prosecutor will argue in opposition that Mr. Henderson's intent when he entered was only to commit an assault As discussed in Point I(C), below, the prosecutor will likely take this position to make this case appear to be analogous to People v Miller (32 NY2d 157 [1973]). However, as discussed below, Miller is inapplicable to the present case. Moreover, it should be apparent that if the prosecutor concedes that Mr. Henderson may have entered only to harm (but not kill) Mr. Chambers, then there was a view of the evidence that his killing of the decedent was merely reckless. Thus, if the prosecutor takes that position, this Court should, at a minimum, order a new trial because of the error described in Point II., 28 that also supported the reversal. For example, in Langston v Smith, the Second Circuit Court of Appeals addressed a similar issue arising out of New York's "felony assault" statute (630 F3d 310 [2d Cir 2011]). In Langston, The government alleged that Mr. Langston (and several of his associates) agreed to sell illegal guns to an undercover police officer. When Langston and the officers disagreed about how the sale should be carried out, an argument ensued, and Langston refused to deliver the weapons. Eventually, one of Langston's associates agreed to retrieve the guns for the officers. Although the argument appeared to have been resolved, Langston's associates returned with the guns and opened fire on the officers, injuring one of them. Mr. Langston was charged with felony assault Felony assault, like felony murder, requires a showing that an assault was committed "in the course of and furtherance of the commission ... of a felony", resulting in serious physical injury to a non-participant (Penal Law§ 120.10 [ 4]). The Second Circuit noted that "felony murder is closely akin to the common-law and statutory crime of felony murder, which punishes killings as murder, even in the absence of intent to kill, when death is caused in furtherance of a felony" (Langston, 630 F3d at 315). However, the government offered no proof that the assault "furthered" 29 the weapon possession, and the Second Circuit granted the writ by holding: "the prosecutor presented no evidence tending to show that the officers were assaulted to further' ... the possession of the very guns used in the attack-- the theory on which the State principally defends the conviction in this Court ... As the prosecutor seemingly admitted, shooting [the officers] was in no way part of a plan to ensure that the guns used in the assault remained in the shooters' possession; rather, the guns were used specifically in an attempt to rob" (Langston, 630 F3d at317).6 Interestingly, the Second Circuit founded its decision on a post-Cahill decision from the Third Department in People v Swansbrough (22 AD 3d 877 [3d Dept 2005]). In Swansbrough, the defendant was charged with unlawful imprisonment and felony assault The prosecutor alleged that Ms. Swansbrough and her accomplices restrained the victim (unlawful imprisonment) and attacked the victim while she was restrained (assault). In short, the felony underlying the assault was the "unlawful imprisonment" of the victim. The Third Department reversed the defendant's conviction on the grounds that there was insufficient evidence of felony assault because the 6 It is Mr. Henderson's position on this appeal that, like Mr. Langston, his rights under the state and federal constitutions were similarly violated by his conviction on the basis of insufficient proof in this matter. 30 assault was not ((in furtherance of" the unlawful imprisonment: ((we observe that the evidence here was insufficient to support the conclusion that the assault was committed to further the unlawful imprisonment as required by Penal Law§ 120.05(6); rather any unlawful imprisonment was committed in furtherance of the assault" (Swansbrough, 22 AD 3d at 878). Thus, as in Cahill, Langston, and Swansbrough, this Court should rule that the government failed to prove that the homicide was carried out ((in furtherance of" the burglary. Here, the homicide did nothing to promote the burglary. The burglary was initiated to effectuate the homicide. In this way, the government actually proved the inverse of what is required. The government proved that the burglary was in furtherance of the homicide. Therefore, this Court should dismiss the felony murder count. C. The Felony Murder Charge Improperly ((Double Counts" the Same Mens Rea That Elevates Trespass to Burglary Assuming this Court determines that there was sufficient evidence that the homicide was ((in furtherance of' the burglary, as a separate basis for reversal, it is Mr. Henderson's position that the proof in this matter improperly uses the same mens rea (i.e. intent to commit a homicide) to 31 elevate trespass to burglary and also to elevate manslaughter to felony murder. This "double counting" of the intent to kill is impermissible and is inconsistent with the purpose of the felony murder statute and its legislative history. People v Cahill provides the support for this conclusion. In Cahill, this Court determined that there was insufficient evidence of capital murder because, "the burglary carried no intent other than to commit the murder" (Cahill, 2 NY3d at 62). This Court further said: "Burglary requires an intent to commit a crime in the burglarized premises, and here the prosecutor uses defendant's 'intent to kill' to satisfy the burglary definition. But the very same mens rea-the intent to kill-also defines intentional murder (Penal Law§ 125.25). Thus, the prosecution employs the identical mens rea both to define burglary and to elevate defendant's intentional murder to murder in the first degree. The defense argues that this circularity is impermissible and that the capital murder statute contemplates a felonious intent independent of the murder itself. We agree." (Cahill, 2 NY3d at 64 [2003]). The court went on to say that: "the burglary was not meaningfully independent from the murder. Defendant's trespass on the hospital premises was merely a prerequisite to his committing the murder-an enabling measure that had no purpose or substance other than to serve his 32 only goal, to kill his victim." (Cahill, 2 NY3d at 70). However, in announcing the decision in Cahill, this Court noted that the ruling was limited to the capital murder statute: "[w]e therefore have no occasion to decide whether in a felony murder case [our holding] should be extended to a defendant who enters a building to murder the victim ... it would be improvident of us to render an opinion in a hypothetical case under a statute involving concepts and purposes different from the one before us" (Cahill, 2 NY3 d at 3 7). The primary reason for limiting Cahill in this way was because of the constitutional requirement to narrowly tailor the application of the death penalty to avoid arbitrary and capricious exercises of state power (Godfrey v Georgia, 446 US 420, 428 [1980]). Moreover, the Cahill court noted that the purpose of the capital murder statute was to narrow the class of people eligible for increased punishment, but the purpose of the felony murder statute was to widen that class if the offender committed his crime under certain circumstances described by the felony murder statute. In describing the circumstances to which the legislature intended the 33 felony murder statute to apply, this Court observed: ~~ .. .felony murder covers non-intentional killings. The very purpose of the felony murder doctrine is to utilize the underlying felony as a substitute for the defendant's murderous intent and thereby raise an unintentional killing to the level of murder. The basic tenet of felony murder is that the mens rea of the underlying felony is imputed to the participant responsible for the killing. By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing" (Cahill, 2 NY3d at 67 [internal citations and punctuation omitted]). However, the factors which Cahill describes distinguishing felony murder from capital murder are not present here. Here, Mr. Henderson specifically said he was ~~going to kill" the victim.7 Moreover, if in felony murder, the ~~mens rea of the underlying felony is imputed to the participant responsible for the killing", then, for the purposes of this case, this is just another way of saying that the intent to kill for the purposes of burglary is imputed to a person who already has the intent to kill. In the case at bar, there is no need to employ this ~~legal fiction" to enhance Mr. Henderson's 7 The prosecutor has, in the past, argued that there is a view of the evidence that Mr. Henderson only entered to assault Mr. Chambers (see Respondent's Appellate Division Brief at A 801-804). First, this distinction is irrelevant because every homicide, including the one in Cahill, begins as an assault Second, if the prosecutor takes the position that there was a reasonable view of the evidence that Mr. Henderson only intended to assault for the purposes of this argument, then it is respectfully submitted that this Court must grant a new trial as argued in Point II. 34 culpability. The prosecutor's own proof shows that Mr. Henderson had homicidal intent when he entered the room. The law already criminalizes his intent to kill in the form of the intentional murder statute (Penal Law§ 125.25[1]). When interpreting the definition of a crime, courts must scrupulously ensure "that penal responsibility is not 'extended beyond the fair scope of the statutory mandatem (People v Hedgeman, 70 NY2d 533, 537 [1987]). To determine the "fair scope of the statutory mandate", a reviewing court must examine the statute's plain meaning, its legislative history, and its underlying sense and purpose (Hedgeman, 70 NY2d at 537). Therefore, although Cahill describes the felony murder statute's "widening" function, it is similarly important that the statute only punish those actions and criminal intentions the statute was designed to address. Here, Mr. Henderson's actions do not amount to a non-intentional killing that requires imputation of homicidal intent because that intent was already present In light of that conclusion, there is no reason to avoid applying Cahill to the facts of Mr. Henderson's case. Indeed, the same reasons for not double-counting the same criminal intent apply here with equal, if not greater, force. For example, in describing the prohibition against double-counting in Cahill, Judge Rosenblatt 35 extensively discussed the history and purpose of the burglary statutes. This Court noted that burglary was part of a larger hierarchy of crimes that involve intrusions upon property (Cahill, 2 NY3d at 64; citing Penal Law Article 140). The simplest form of intrusion is the violation -level offense of criminal trespass (Penal Law§ 140.05). Criminal liability for an intrusion increases depending upon the type of property that the actor intrudes upon, whether he intends to commit a crime therein, and whether he possesses certain weapons (see Penal Law§ 140.10, 140.15, 140.20, 140.25 and 140.30). However, the thing that critically distinguishes trespass from the enumerated-felony of burglary is the "intent to commit a crime therein" (see, for example, Penal Law§ 140.25). In other words, without the accompanying criminal intent, Mr. Henderson's crime is merely a "trespass", which is not an enumerated-felony and, indeed, is not a felony of any kind.8 Therefore, the intent to commit a crime is what turns a misdemeanor trespass into a burglary. However, when the criminal intent is to commit a homicide on a single person, then the same intent is used to elevate a misdemeanor to a felony and then that felony also triggers the application of the felony murder 8 Criminal Trespass in the First Degree is a felony, but not under the circumstances described in this case (Penal Law§ 140.17). Unlawfully entering a premises, even while in possession of a knife, is only a misdemeanor at most (Penal Law§ 140.05, 140.10). 36 doctrine. In Cahill, this Court held that "this circularity is impermissible" because "the capital murder statute contemplates a felonious intent independent of the murder itself" (Cahill, 2 NY3d at 64). The problem described in Cahill is even worse in the felony murder context because with the double-counted intent, the underlying crime is merely a misdemeanor, not even a felony needed to establish felony murder. It is respectfully submitted that the felony murder statute also does not permit this circularity because subtracting the intent to commit the homicide in the building would reduce the burglary to a crime that is not even a felony. Thus, there is similarly no basis to impute a felonious intent to Mr. Henderson's conduct. Indeed, the conduct would not even be a felony if it were not for the intent to kill. Although Cahill ostensibly limited its analysis only to capital murder cases, this Court has continued to apply its underlying rationale which prohibits the circularity inherent in double-counting a single criminal intent For example, in People v Lucas the defendant was charged with First Degree Murder based upon his killing of an individual that he had kidnapped (11 NY3d 218, 221 [2008]). The defendant was also charged under Penal Law§ 125.27(a)(1)(vii), which makes it non-capital first degree murder if the 37 person commits an intentional killing (tin the course of and in furtherance of" a kidnapping. He was also charged under Penal Law§ 135.25(3), which increases the penalty if the victim of the kidnapping dies during the abduction. The defendant cited to Cahill in support of his argument that the accusatory instrument was facially insufficient because, as this Court characterized his argument, it uviolates a rule against {double counting' that defendant finds in People v Cahill" (Lucas, 11 NY3d at 221). Specifically, the defendant claimed that the murder and kidnapping statutes improperly (I double counted" the death of the victim to make an enhanced crime. This Court rejected Lucas' argument but, in the process, further explained the rationale underlying Cahill. Judge Smith, writing for a unanimous court, explained: u[t]he gist of Cahill is that where only one criminal intent, the intent to kill, is shown, defendant's crimes has not been {aggravated' to first degree murder. That is not true here. Here, the murder defendant committed and the predicate crime that serves as an aggravation arise from two distinct intents --the intent to kill the victim and the intent to abduct him .... It is of no moment that a factual circumstance other than defendant's intent --in this case, the victim's death-- is an element of both murder and the predicate felony. Cahill is satisfied by a showing of a second criminal intent" 38 (Lucas, 11 NY3d at 222 [emphasis in original]). Lucas's description of Cahill and the prohibition against double-counting a single intent is what makes this Court's decision in People v Miller inapplicable to the case at bar (32 NY2d 157 [1973]). Miller is the case that the prosecutor has primarily relied on throughout these proceedings to defeat Mr. Henderson's position. People v Miller is not necessarily contrary to Cahill; it merely presents a factual and analytical scenario not present in Cahill or Henderson. In Miller, the defendant unlawfully entered an apartment to attack one of the occupants, a man by the name of Fennell. When one of Fennell's roommates intervened to defend his friend, Miller killed the roommate. Miller argued on appeal that the doctrine of merger prohibited the conviction, but this Court disagreed and said: u[w]e deem this evidence to be legally sufficient for the jury to find that the defendant committed the crime of burglary by knowingly entering unlawfully Fennell's apartment with intent to assault Fennell, the crime of burglary would have been committed. Thus, since the defendant killed Aleem in the course of an furtherance of his commission of burglary, the requirements of the felony-murder statute are satisfied" (Miller, 32 NY2d at 159). Miller was a 4-2 decision. The concurring judges identified what would 39 ultimately become the major factual distinction between Miller and Cahill: "a conviction of felony murder was sustained where the underlying offense was assault if the assault was committed on a person other than the one killed ... While the burglary was still under way, Aleem who had not theretofore been involved in the assault, responded to Fennell's calls for help. The defendant then, in the course of and in furtherance of the burglary caused the death of [the roommate]" (Miller, 32 NY2d at 162 [Judge Jones, concurring] [internal citations omitted]). The majority in Cahill apparently accepted that single-intent/ single-victim factual distinction when it observed that Miller was inapplicable to Cahill's facts. For example, this Court said: "Miller deals with assault and we have not been made aware of a single case in which this Court (or any appellate court in New York) ever discussed whether a felony murder conviction may be based upon a burglary with an underlying intent to kill, let alone held that way" (Cahill, 2 NY3 d at 68). Thus, although the prosecutor will likely urge that Miller controls the outcome of this case, it is respectfully submitted that Miller is factually different than Mr. Henderson's case in an important respect Miller involves two separate criminal intents. Cahill, like the present case, involves only the 40 intent to commit one criminal act on a single individual. It is a basic precept of criminal law that individuals should be punished for, and in proportion to, their mens rea (US v Balint, 2 58 US 2 50 [19 2 2]). In this light, it would be incongruous to punish Mr. Henderson in the same way as Mr. Miller. Mr. Henderson had a single criminal intent, but Mr. Miller had two. Mr. Miller's actions resulted in the assault of Fennell and then the impromptu killing of the roommate. Mr. Henderson's actions resulted in only the killing of his intended target This is not to discount the seriousness of these actions, but only to point out that there is no second criminal intent here to "aggravate" Mr. Henderson's singular intent and, therefore, no logical reason to impute to him a homicidal intent greater than what the proof shows he already had. The principle underlying Cahill's prohibition against "double-counting" an element in charging a single offense sterns from a rational desire by courts not to have a crime appear more aggravated than it actually is. In People v Brown (6 7 NY2d 555 [1986]), the Court of Appeals noted this potential problem in a case involving Criminal Use of a Weapon in the First Degree and Robbery in the First Degree: " neither crime contains an element which is not also an element of the other crime. The gun first elevated defendant's robbery conviction to a class B violent felony; the class B felony and 41 possession of the same gun then sustained the conviction for criminal possession of a firearm. When use of or display of a firearm is an element of a class B felony, the use or display of that same firearm cannot also be the predicate for criminal display of a firearm in the first degree" (People v Brown, 67 NY2d 555, 556 [1986]). It is anticipated that the prosecutor will argue that Mr. Henderson did have two potential criminal intents upon entry into the apartment: one potentially to assault Mr. Chambers and one to kill him. The prosecutor will likely further argue that since Miller permits a conviction for felony murder based upon a burglary with the underlying intent to assault, then there is sufficient evidence of felony murder. For two reasons, discussed below, this Court should reject any such argument First, it should be obvious that Miller's holding directly results from the factual conclusion that Miller entered with the intent to assault one person and then killed another. This is the exact way that the concurrence describes the basis for the decision. Second, even if it could be said that Mr. Henderson had two criminal intents regarding a single victim (intent to assault and intent to kill), u[t]he problem with Cahill was the double counting of one criminal intent" (Lucas, 11 NY3d at 221[emphasis in original]). As 42 discussed below, every homicide begins with an assault. What is lacking from the case at bar is proof of a criminal intent aside from the intent to assault/kill the intended victim. A critical distinction between Miller and the case at bar is the presence of two separate victims and two distinct intents related to each in the Miller case. There are no reported felony murder cases endorsing a conviction where it is clear that the defendant made an illegal entry with the single purpose of committing a homicide. Cahill is the closest analogy. The Third Department cited to People v Couser in support of its holding (12 AD 3d 1040 [4th Dept 2004]). However, like Miller, the facts of Couser relate to two separate criminal intents. In Couser, the defendant committed a burglary with the intention of killing a witness to a crime. When they discovered that the witness was not at home, they killed his mother. Miller applies to Couser because there are two separate criminal intents: the original intent to kill the witness and the subsequently-arising intent to kill the mother. Lucas comports with this conclusion because of the separate intents. The prosecutor has, in the past, argued that the intent to commit assault is an intent separate from the intent to commit murder. Under the prosecutor's reading of Miller, the possibility of entering to assault, would 43 qualify for felony-murder treatment However, Mr. Henderson did not have two separate criminal intents because it is impossible to commit a homicide without intending to commit an assault For example, intentional assault in the second degree is always a lesser included offense of intentional murder since it is impossible to commit an intentional killing without also concomitantly committing by the same conduct a serious physical injury (see People v Umana, 158 AD2d 492 [2d Dept 1990]). Further, it has been held that the statutory definitions of((serious physical injury" (PL § 10.00[10]) and ((physical injury" (PL § 10.00 [9]) render it impossible to commit an assault with the intent to cause serious physical injury without concomitantly committing assault with the intent to cause physical injury (People v Greene,111 AD2d 183, 184 [2d Dept 1985]). Thus, one intending to commit murder is definitionally intending to commit an assault (see People v Quinn, 162 AD2d 368 [1stDept1992] [holdingthatintentionalassaultin the third degree is a lesser of intentional murder]). Since, as discussed above, every homicide, not excusable or justifiable, occurs during the commission of assault, every homicide would necessarily constitute a felony murder. In recognition of that reality, the felony murder statute was amended in 1965 to specifically exclude assault as an 44 enumerated felony for the purposes of felony murder (see Penal Law of 1909, §1044). Under that now-defunct statute, any felony, including assault, could be the predicate for a felony murder. The amendment to the statute accomplished what courts have always done via the doctrine of ((merger", namely, remedy the absurd result of treating every homicide, which a fortiori, included a felony assault, as a felony murder (Miller, 32 NY2d at 159-160). While the specific defect which gave rise to the merger doctrine was remedied in 1965 when the revised Penal Law eliminated assault as a predicate felony, the evil which the merger doctrine sought to remedy still exists with felony murder predicated upon a burglary effectuated to carry out a single homicidal intent.9 It is respectfully submitted that the legislature's intent in deleting assault as an enumerated felony is consistent with the relief Mr. Henderson 9 Although the merger doctrine has come to be viewed as something of an antiquity, appellate courts continue to apply the merger doctrine in other contexts to avoid similarly irrational results (see People v. Geaslen, 54 NY2d 510 [1981]; People v. Cassidy, 40 NY2d 762 [1976] [merger doctrine precluded conviction of kidnapping in second degree because there was no independent abductions involved in the commission of the crimes of sexual assault and robbery]; People v. Dolan, 40 NY2d 763 [1976] [merger doctrine barred prosecution for kidnapping where "true" crime was continuing sexual assault and confinement of victim in car only the incidental means to the accomplishment of that assault]; People v. Castillo, 178 AD2d 113, 114 [2d Dept 1991] [because "defendant's act of holding gun ... was integral to his criminal responsibility for both robbery and kidnapping such that independent" responsibility may not be imputed, because "the kidnapping charge merged with the robbery charge" requiring his "convictions and felony murder be reversed"]). 45 requests on this appeal. The legislature recognized the absurdity of "double-counting" that intent as the basis for enhancing the criminal penalty for what was otherwise an ordinary homicide. There is nothing objectionable about allowing that intent to form the basis for a burglary. However, it is only that intent (which was deleted from the felony murder statute almost fifty years ago) that permits the penological enhancement of felony murder in this case. Cahill does not permit that double-counting, and a contrary conclusion would be inconsistent with the legislature's deletion of assault as an enumerated felony. D. Conclusion There was insufficient evidence of felony murder. First, the prosecutor failed to prove that the homicide was "in furtherance of' the burglary. Indeed, the prosecutor ended up proving the inverse: the burglary was committed to accomplish the homicide. Second, the proof improperly double-counted a single criminal intent to enhance a trespass to burglary and to enhance a homicide to felony murder. As a result, the felony murder count should be dismissed. 46 Point II: The Trial Court Erred by Refusing to Charge the Lesser-Included Offense of Manslaughter in the Second Degree A. Introduction: Mr. Henderson testified in his own defense at his first trial, and the prosecutor chose to have that testimony read into the record at the second trial (A 401-542). As part of this testimony, Mr. Henderson described the moments preceding his fatal encounter with Mr. Chambers. Mr. Henderson said that Mr. Chambers had called him a "nigger", threw a glass bottle at him, and hit him over the head with a VCR during a physical altercation (A 425). Mr. Henderson conceded that he did return to Ms. Eastman's apartment to retrieve a knife, but only did so because he was angry and wanted to injure Mr. Chambers, but did not intend on killing anyone (A 433). According to Mr. Henderson's testimony, when he returned to apartment 48F, Mr. Chambers continued to antagonize Mr. Henderson with racial slurs (A 432). The two men engaged in a scuffle and they interlocked with each other (A 434). Mr. Henderson said that during the struggle, Mr. Chambers took a swing at him and "I actually stabbed him in the back when he took a swing at me" (A 435). Mr. Henderson testified that at that moment "I didn't intend to kill him. I mean I'm not going to lie. I wanted to hurt him like 47 he hurt me with the bottle, then the VCR but I didn't want to kill him" (A 435). Moreover, there was substantial reason to disbelieve Ms. Morelli's testimony regarding how the fatal encounter occurred. Ms. Morelli testified to the circumstances of Mr. Henderson's entry, but Ms. Morelli also admitted that she had smoked a substantial amount of crack-cocaine before giving her statement to police and she further admitted, ~~I don't know what I was saying, but I know that I did not want to get in trouble and I know I did not want my boyfriend to get in trouble, so I said whatever I could to protect me and Duncan" (A 360). This admission from Ms. Morelli certainly provided the jurors with a basis to disbelieve her testimony and accept Mr. Henderson's on the subject of his intent On this basis, Mr. Henderson requested that the trial court charge the jury with the lesser-included offense of Manslaughter in the Second Degree. A person is guilty of Manslaughter in the Second Degree when ~~[h]e recklessly causes the death of another person" (Penal Law§ 125.15[1]). A person is guilty of Manslaughter in the First Degree when u[w]ith intent to cause serious physical injury to another person, he causes the death of such person ... " (Penal Law§ 125.20[1]). Defense counsel argued that there was a reasonable view of the 48 evidence that Mr. Henderson did not seek to kill Mr. Chambers, but merely attempted to hurt him during a fight, and that injury caused his death (A 583-585). The lower court denied the request and said that u[ e]ither it was a manslaughter first or it didn't happen and he was not guilty of it .. He said he was angry. He wanted to get back at him ... He wanted to hurt him back. I don't see any version of the facts that would indicate that there was a reckless manslaughter" (A 583-585). The medical evidence showed that Mr. Henderson stabbed Mr. Chambers only one time, but that the wound penetrated to a depth of five inches and struck a major artery (A 819-824). However, there was no evidence that Mr. Henderson intended to strike that artery or that he even knew where that major artery was located. There was also no evidence that Mr. Henderson pushed the knife to a depth of five inches. Although that is the depth that the medical examiner measured, a reasonable juror could conclude that the knife was pushed in further (and to a fatal depth) after Mr. Chambers fell onto the ground. Moreover, there was no evidence that Mr. Chambers would have died even if the artery had not been struck. Indeed, Mr. Henderson's description of the stabbing occurring during a scuffle makes it possible that the stabbing 49 was indiscriminate or that its location was unplanned. Stabbing an individual a single time is not ipso facto evidence that the person intends to kill or even cause serious physical injury, but there is certainly the risk that a single indiscriminate stab could cause death, as in this case.10 Mr. Henderson raised this same issue at the appellate division, but that court rejected his argument and concluded, "[h]e admitted that he intended to hurt the victim when he stabbed him and, based on the nature and force of the fatal stab wound, the only reasonable view of defendant's conduct was that it was intentional" (Henderson, 110 AD 3d 1353 [3d Dept 2013]; citing People v Butler, 84 NY2d 627 [1994]; People v Stanford, 87 AD3d 1367 [2011]; People v Lopez, 72 AD 3d 593 [2010]; People v Sussman, 298 AD2d 205 [2002]). 10 This Court recently addressed Mr. Henderson's case in the course of deciding People v Rivera (23 NY3d 112 [2014]). At the time of the Rivera decision, Mr. Henderson's case was still pending a decision on his application for leave to appeal. In deciding Rivera, this Court described Mr. Henderson's case as an example of an appropriate refusal to charge the lesser included offense because "he admitted that he intended to hurt the victim when he stabbed him and, based on the nature and force of the fatal stab wound, the only reasonable view of (his) conduct was that it was intentional" (Rivera, 23 NY3d at 7 [jump cite unavailable in official reporter]). However, it is respectfully submitted that there is considerably more factual context involved in Mr. Henderson's case than was made the subject of the Third Department's decision. This Court should review that conclusion anew on Mr. Henderson's appeal, especially in light of the prosecutor's concession on appeal, as discussed below, that ""[u]ndoubtedly, the trial evidence in this case would have been sufficient to support a conviction for manslaughter in the second degree" (A at 810). 50 It is Mr. Henderson's position on this appeal that a rational juror could have accepted that Mr. Henderson's conduct was a (I gross deviation" from that of a reasonable person and he was reckless with respect to death when he stabbed Mr. Chambers during their fight As a result, the lower court erred by refusing to charge the lesser-included offense. This Court should reverse Mr. Henderson's conviction and order a new trial. B. There Was a Reasonable View of the Evidence That Mr. Henderson Committed the Lesser Offense. But Not the Greater Pursuant to CPL § 300.50, if the defense requests the trial court to instruct the jury on the law of a lesser offense, the court must give the charge (1) when the lesser offense is a proper "lesser included offense" of the indicted offense and (2) when there is a reasonable view of the evidence which would support a finding that the accused committed the lesser offense, but not the indicted offense (People v Green, 56 NY2d 427 [1982]; People v Glover, 57 NY2d 61 [1982]). First, there should be no debate that Manslaughter in the Second Degree is a proper lesser-included offense of Manslaughter in the First Degree. It is theoretically possible to commit the lesser crime, but not the greater (see People v Evans, 232 AD2d 275 [1st Dept 1996]). 51 The difference between the two charges is merely the actor's intent at the time of the homicide. The issue of intent is a classic jury question. For example, in People v Dinser (192 NY 80 [1908]) the question at trial was whether the defendant's brutal attack and killing of a child was intentional or reckless with respect to death. This Court noted: uthe evidence which bore upon the circumstances surrounding and preceding the homicide raised an issue of fact upon the question whether the defendant attacked the child of tender years with such an amount and kind ofviolence as to support the inference of murderous intent, or whether the tragic result was due to a single blow administered in the heat of passion without ulterior design" (Dinser, 192 NY at 84)Y For the purposes of Manslaughter in the Second Degree, the person's mens rea with respect to death must be recklessness. A person is reckless uwhen he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists" 11 see also Morissette v US, 342 US 246, 250-251 (1952)("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil"); People v Shapiro, 96 AD2d 626 (3d Dept 1983)(whether intoxication negated intent was a question for jury).By deciding this issue of fact against Mr. Henderson, it is submitted that the lower court deprived Mr. Henderson of his right to a jury trial and his right to due process, as defined by the state and federal constitutions. 52 (Penal Law§ 15.05 [3]). The risk disregarded umust be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law§ 15.05 [3]). On the other hand, a person acts intentionally uwhen his conscious objective is to cause such result or to engage in such conduct" (Penal Law§ 15.05[1]). It was Mr. Henderson's position in the lower court that there is a reasonable view that his conduct was a a gross deviation" from that of a reasonable person and that, by using the knife, he consciously disregarded the risk that death could result from his actions. Thus, there was a reasonable view of the evidence that he committed only the lesser crime. In determining whether an accused could have been found guilty of only the lesser included offenses, a reviewing court must view the evidence in the light most favorable to the accused (People v Martin, 59 NY2d 704 [1983]). This Court has emphasized, 'Tw]e have repeatedly written that if, 'upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense"' and "[t]hat an acquittal may have been the only permissible verdict had the jury credited the testimony of the accused is of no consequence" 53 (People v Asan, 22 NY2d 526, 529-30 [1968]). The analysis articulated in Asan is essentially the inverse of the typical test for legal sufficiency of the prosecutor's proof as articulated in People v Bleakley (62 NY2d 490 [1987]). In BleakleyJ this Court said that there is legally sufficient evidence when "there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" (Bleakley, 62 NY2d at 495). Accordingly, "it is the exceptional case" where the refusal to charge a lesser included offense is not error (People v Richardson, 36 AD2d 25, 29 [4th Dept 1971]). As a preliminary matter, Mr. Henderson requests that this Court should explicitly hold thatAsan and Bleakley contemplate the exact same analysis. Both analyses require viewing the evidence in the light most favorable to the defendant/prosecutor. Both analyses require presentation to the jury if "any view of the facts" (Asan) or "any valid line of reasoning" (Bleakley) support the charge. It is respectfully submitted that the case at bar is evidence of a larger confusion in the lower courts as to whether there is any distinction between these analyses. If this Court was to explicitly hold that these analyses are essentially the same, it would result in more factual disputes being 54 resolved by jurors, instead of judges. For example, when arguing this matter at the appellate division, Mr. Henderson cited to many stabbing homicide cases in which which appellate courts had determined that there was a "reasonable view of the evidence" that stabbings much more violent than the one in this case were consistent with a finding of reckless conduct (see, for example, People v Stridiron, 33 NY2d 287 [1973]). On appeal to the Third Department, the prosecutor actually conceded that, "[u]ndoubtedly, the trial evidence in this case would have been sufficient to support a conviction for manslaughter in the second degree", but that the conclusions in Stridiron and other similar cases were inapplicable because "[i]n those cases, the defendants were not charged, as the defendant is here, with intentional manslaughter" (Respondent's Brief on Appeal, A at 809-810). Inherent in this concession is the notion that a rational juror could have concluded, based upon the trial evidence, that Mr. Henderson's actions were reckless (but not intentional) with respect to death, but the prosecutor appeared to believe that a request-to-charge was somehow influenced by the prosecutor's charging decisions. It is respectfully submitted that this Court should view the prosecutor's concession at the appellate division as a 55 concession on this appeal that a rational jury could have found Mr. Henderson guilty of Manslaughter in the Second Degree. This Court should further conclude that the prosecutor's charging decisions should not at all influence the outcome of a defendant's request-to-charge. For example, in People v Stridiron, the defendant was charged with Manslaughter in the First Degree for having stabbed the victim in the chest two times during a barroom brawl (33 NY2d 287, 290 [1973]). In Stridiron, the defendant and another man entered into an argument about ownership of a coat at the bar. As the two men argued, the victim punched Stridiron in the face. Defendant opened a knife and ({{swung' the knife at [the victim]". The victim tried to hit Mr. Stridiron with a chair, and the defendant continued to stab the victim. When the victim came at Mr. Stridiron with a pool cue, the defendant chased the victim out of the bar with his knife in hand. The victim died in a nearby vacant lot Mr. Stridiron was convicted of Manslaughter in the Second Degree and he argued that the evidence of this crime was insufficient This Court held that ((there was ample evidence, if believed, from which the jury was privileged to conclude, beyond a reasonable doubt, that the defendant recklessly caused the death of [the victim]" (People v Stridiron, 33 NY2d 287, 292 [1973]). 56 Here, the jury could have similarly accepted that Mr. Henderson stabbed Mr. Chambers when he attempted to punch him. Notably, Mr. Henderson only stabbed Mr. Chambers one time, as opposed to the multiple stab wounds to the chest that the victim suffered in Stridiron. It is respectfully submitted that Mr. Henderson's actions were at least as reckless as Mr. Stridiron's, and were probably less so in that Mr. Henderson stabbed only once and explicitly said that he only wanted to injure Mr. Chambers. In People v DiBella, the Third Department found that there was sufficient evidence of recklessness with respect to death when the defendant stabbed the victim in the chest following a ((hostile verbal exchange" at a bar (277 Ap3d 699 [3d Dept 2000]). The defendant admitted to stabbing the decedent while the two men struggled on the ground. On the other hand, the government presented evidence that the defendant stabbed the victim in the chest while the two men were standing up and facing each other. The appellate court ruled that tithe evidence established a valid line of reasoning which could lead a rational person to conclude that defendant recklessly stabbed decedent and caused his death" and (lit was entirely reasonable for the jury to conclude that defendant recklessly produced a knife and stabbed decedent during the course of the fight, causing his death, supporting a 57 conviction of manslaughter in the second degree" (DiBella, 277 AD2d at 700; see also People v George, 43 AD 3d 560 [3d Dept 2007] [single gunshot to the abdomen is sufficient to establish recklessness]). In People v Morahan, the defendant accused three acquaintances of stealing money from him (154 AD2d 848 [3d Dept 1989]). A fight ensued and the defendant stabbed the unarmed decedent in the chest. The Third Department ruled, citing Stridiron, that ((defendant's act of plunging his switchblade knife into the chest of the unarmed victim in and of itself more than satisfied the requirement that he was 'aware' that there was a substantial and unjustifiable risk that death would occur as the result of his conduct and that he consciously disregarded the risk in striking the blow" (Morahan, 154 AD2d at 848). Again, this is similar to Mr. Henderson's actions in stabbing an unarmed victim one time during the course of a fight. In People v Douglas, the defendant stabbed the victim 16 times and broke his arm in a dispute over a wager (17 AD 3d 380, 381 [2d Dept 2005]). The defendant said u[t]he guy robbed me and I stabbed him", indicating that, perhaps, the stabbing was intentional, but that the defendant was merely reckless with respect to death. When Mr. Douglas argued that there was insufficient evidence of his conviction for Manslaughter in the Second Degree, 58 the appellate court ruled that "viewing the evidence in the light most favorable to the prosecution ... we find that it was legally sufficient to establish the elements of manslaughter in the second degree" (Douglas, 17 AD3d at 381 [internal quotations omitted]). Here, as the prosecutor conceded, Mr. Henderson's testimony provided a view of the facts that could have been accepted by a rational juror. Essentially, his testimony could have led to the finding, as Mr. Henderson explicitly testified, that he only attempted to hurt Mr. Chambers, but never intended to kill him. Indeed, the trial prosecutor himself offered Mr. Henderson's testimony in an apparent effort to secure a conviction for, at least, reckless manslaughter. This was a rational strategy on the prosecutor's part, especially in light of the fact that Mr. Henderson had been acquitted of intentional murder in his first trial. Under these circumstances, the jurors could have concluded that Mr. Henderson's action was merely reckless with respect to death, as required by Penal Law§ 125.15(1). Nonetheless, the appellate division affirmed Mr. Henderson's conviction and held that "based on the nature and force of the fatal stab wound, the only reasonable view of defendant's conduct was that it was intentional" (Henderson, 110 AD3d at 1353). It is respectfully submitted that 59 the appellate division's reasoning was flawed in a subtle, but important, way. The appellate division made the determination that the nature of the stab wound made it clear that Mr. Henderson's conduct was intentional. In making this conclusion, the appellate division conflated intentional conduct with voluntary conduct The prosecutor made a similar argument on appeal by saying, u[w]hen the defendant stabbed Duncan, he did so intentionally ... " and {(defendant clearly admitted intentional conduct" (Respondent's Brief on Appeal at A 807). There is no debate that Mr. Henderson voluntarily stabbed Mr. Chambers. Penal Law§ 125.20(1) is not primarily concerned with whether conduct was voluntary, but whether the person intended a certain result. If the prosecutor's reasoning was correct, any voluntary attack would be murder as matter oflaw. Instead, Penal Law§ 125 sorts homicide offenses by the person's mens rea with regard to an intended result A person is guilty of Manslaughter in the First Degree if they act u[w]ith intent to cause serious physical injury", which causes the victim's death. The statute does not contemplate whether the act was {(intentional", but whether the person intended to cause a certain result via his actions. Similarly, a person is guilty of Manslaughter the Second Degree if he {(recklessly causes the death of 60 another person" (Penal Law§ 125.15 [1]). This does not necessarily mean that the death was caused by accidental means, but only that the actor observed and ignored the potentially fatal result of his voluntary actions (Penal Law§ 15.05 [3]). This Court's jurisprudence similarly draws a clear distinction between an actor's conduct and his intended result (see, for example, People v Gonzalez, 1 NY 3d 464 [2004] ["where the shooting (the act) and the death (the result) are the same, a defendant cannot be convicted twice for the murder, once for acting (intentionally' and once for acting (recklessly"']; People v. Robinson (145 AD 2d 184 [4th Dept 1989]; aff'd on opinion below, 75 NY 2d 879 [1990]); People v. Trappier, 87 NY 2d 55, 59 [1995][the defendant in Robinson -like the defendant in Gallagher and unlike the defendant in the instant case-- was convicted for acting intentionally and recklessly as to the same result, the death of the victim]; People v. Heiliger, 96 NY 2d 462,466 and 467 [2001]). Sometimes a person's conduct might make his intent perfectly clear (People v Gor:1zalez, 1 NY 3d 464 [2004][ten gunshots evidence of intentional killing only]). However, a single stab wound, delivered during a fight, cannot be such an instance as a matter of law. Reasonable minds could disagree on that subject As a result, the matter should have been submitted to the jury. 61 This Court should order a new trial. C. The Appellate Division Failed to Recognize that the Prosecutor Made Two Important Concessions in the Course of Arguing the Charge-Down Issue Finally, it is important to point out that the prosecutor made two important concessions at the appellate division level. This Court should consider these concessions when analyzing the prosecutor's positions in this Court. First, when arguing against Mr. Henderson's legal sufficiency argument on the double-counting issue, the prosecutor argued that when Mr. Henderson entered the apartment the second time, ((he did so with the intent to assault Duncan [Chambers], at the very least, and that he did in fact cause Duncan's death ... " (Respondent's Brief on Appeal at A 798-799). However, if the prosecutor concedes that Mr. Henderson merely intended to assault the victim, then it should also follow that perhaps the death was merely an unfortunate result of an intended assault, or a reckless disregard of that consequence, instead of part of a design to cause serious physical injury and possibly death. Indeed, even extremely violent actions do not always result in serious physical injury (see for example, People v Sleasman, 241 AD 3d 1041 [3rd Dept 2005] [stab wound to neck]; People v Robles, 173 AD 2d 377 [1st Dept 1991] [stab wound to neck and shoulder]; 62 People v Horton, 9 AD 3d 503 [3rd Dept2004][gun shot to neck]). If the prosecutor's concession is correct, and there was a reasonable view of the evidence that Mr. Henderson was guilty of Manslaughter in the Second Degree, then the jurors should have been the ones to decide whether there was intent to cause serious physical injury or merely recklessness with respect to death. Instead, the judge decided that issue. On the other hand, and contrary to the concession that Mr. Henderson possibly entered only to assault, the prosecutor also argued at the appellate division that uwhen the defendant stabbed Duncan [Chambers], he did so intentionally and there is no reasonable view of the evidence to suggest otherwise" (A 807). However, if the prosecutor takes this position, then this resolves the issue of whether Mr. Henderson had only a single intent when he entered the apartment If there is only one view of Mr. Henderson's intent, then it should also be clear that the single intent was double-counted in violation of Cahill (as described in Lucas). Thus, based on that concession, the prosecutor should not be heard to argue that he actually had two separate criminal intents. 63 D. Conclusion Mr. Henderson should be granted a new trial. There was a reasonable view of the evidence that Mr. Henderson was merely reckless with respect to death. The trial judge erred by resolving this factual dispute in favor of the prosecutor. 64 Point III: The Lower Court Erred by Refusing to Grant a Missing Witness Charge A. Introduction: The government did not call Gerald Mathes as a witness at this trial. Although he was included on the government's witness list (A 25) and had testified at the first trial (A 566), the prosecutor did not offer his testimony. Defense counsel argued that he was a material witness with regard to the burglary and later homicide, and the prosecutor's failure to offer the evidence should result in a missing witness charge with regard to Mr. Mathes (A 566-567). The prosecutor countered that (a) the request was not timely, and (b) the prosecutor's investigator had contacted Mr. Mathes and Mr. Mathes had refused to testify, and therefore he was unavailable (A 570). The prosecutor summarized his position as follows: {l[w]e don't have an agreement with him. He doesn't want to cooperate. He's not in our control. Beyond that, he is the defendant's cousin" (A 571). The judge rejected the prosecutor's argument that the request was untimely (A 574), but agreed that Mr. Mathes was {/unavailable". He ruled: {II don't have a particular issue with the timeliness. As I see it, Mr. Mathes is unavailable. There have been some reasonable efforts 65 (A 574). by the District Attorney's office to contact him and get him here. He obviously doesn't want to be here according to this note. I'm going to mark this as Court Exhibit 2 just so there's something in the record" The court explained that since the government no longer had a cooperation agreement with Mr. Mathes and 11 [t]hey [the prosecutors] can't say we're going to resentence you to a longer time. It's too late for that" (A 57 4 ). The judge further noted that III think most importantly, Mr. Mathes has been identified several times as Mr. Henderson's cousin and they're good friends and seems like he was planning on sleeping over at Mr. Mathes' house that night.." (A 574-575). Mr. Henderson argued on appeal to the Third Department that the trial court erred by refusing to deliver the missing witness charge. However, the appellate court rejected that argument and said: ~~Nor are we persuaded that County Court erred by denying defendant's requests to charge the jury. His request for a missing witness charge, made after the close of proof, was untimely and, in any event, it was properly denied." (Henderson, 110 AD3d at 1353 [internal citations omitted]). For the reasons stated below, it is respectfully submitted that the 66 judge's reasoning was incorrect. Mr. Mathes was in the control of the prosecutor, he was available, and the request should have been granted. B. The Law Regarding A Request for a Missing Witness Charge The government's failure to call a witness at trial may warrant a jury instruction permitting an adverse inference for that failure. The premise underlying a "missing witness" charge is that by failing to call a witness who would be expected to testify favorably for the government and who is capable of offering material testimony permits the logical inference that the witness was not called because the anticipated testimony would have, in fact, been unfavorable to the party (People v Gonzalez, 68 NY2d 424 at 42 7 [1986]; People v Kitching, 78 NY2d 532, 536 [1991]; People v Macana, 84 NY2d 173, 180 [1994] [Titone, J. dissenting]. To obtain a missing witness charge, a party must show, first, that the uncalled witness' potential testimony is material, second, that the witness would be expected to provide non-cumulative testimony favorable to the party who did not call him (the control element), and third, that the witness is available (Gonzalez, 68 NY2d at427 ). When the defendant makes a prima facie showing of entitlement to a missing witness charge, the court "must give the charge unless the People (either account for the witness' absence or 67 otherwise demonstrate that the charge would not be appropriate"' (People v Erts~ 7 NY2d 872, 87 4 [1988]; quoting Gonzalez, 68 NY2d at 428). As explained below, it is Mr. Henderson's position that the government failed to demonstrate that it did not have control over Mr. Mathes and further failed to reasonably explain why he was {(unavailable". C. The Lower Court Erroneously Ruled that Mr. Mathes Was Unavailable for Testimony As a preliminary matter, it is respectfully submitted that this Court is bound by the trial court's determination that Mr. Henderson made a timely request for a missing witness charge (People v Concepcion, 17 NY3d 192 [2011]; People v LaFontaine, 92 NY2d 470 [1988]). The trial judge explicitly said, ul don't have a particular issue with the timeliness. As I see it, Mr. Mathes is unavailable." (A 57 4 ). The trial judge focused his analysis exclusively on the {(availability" aspect of the missing witness rubric, and it was error for the appellate division to affirm Mr. Henderson's conviction, in part, on the basis that it was untimely. It should also be apparent that the prosecutor never debated in the trial court that Mr. Mathes would give material, non-cumulative testimony if called to the stand. This Court is also prohibited from addressing that issue on this 68 appeal (People v Concepcion, 17 NY3d 192 [2011]; People v LaFontaine, 92 NY2d 4 70 [1988]). Indeed, Mr. Mathes testified at Mr. Henderson's first trial and received a favorable sentencing promise in exchange for his testimony against Mr. Henderson. Presumably, the government would not have given Mr. Mathes this benefit if his testimony was irrelevant or merely cumulative. In fact, Mr. Mathes was an important witness. He was the coordinator of the drug trade at the Henry Hudson Townhouses. It was the prosecutor's theory that Mr. Henderson was also part of the drug trade and that he committed the homicide to recover the stolen drugs on Mr. Mathes' behalf. Mr. Mathes' testimony would have supported the prosecutor's theory regarding Mr. Henderson's motive to kill. Mr. Mathes would have clarified Ms. Morelli's confusion regarding who held the "sharp object" at the time of the second entry. Mr. Mathes would have also been able to clarify whether Ms. Eastman correctly testified that, for example, he completely refused to participate in the second entry. Thus, there should be no debate on the "materiality" element of the missing witness rubric. The only element of the missing witness rubric at issue on this appeal is the "availability" element It is respectfully submitted that the lower court erred by concluding that Mr. Mathes was unavailable. '"Availability' simply 69 refers to the party's ability to produce such witness" (Gonzalez~ 68 NY2d at 428 [1986]). Generally~ a party is unavailable if: 'the party opposing the charge can demonstrate for example~ that the witness' whereabouts are unknown and that diligent efforts to locate him have been unsuccessful; or that the witness is ill or incapacitated~ the charge should not be given for the inference that the witness has not been called because of his anticipated unfavorable testimony has been negated." (Gonzalez~ 68 NY2d at 428 [internal citations omitted]). The prosecutorls description of Mr. Mathes~ refusal to testify does not support the conclusion that he was "unavailable" under Gonzalez. The prosecutor noted that his office had located Mr. Mathes (at his parole-approved residence)~ but Mr. Mathes simply refused to testify. The courrs ruling that~ "Mr. Mathes is unavailable ... He obviously doesnltwantto be here according to this note" is a non-sequitur (A 574). Furthermore~ there was no evidence that Mr. Mathes was sick or incapacitated~ or that his potential testimony would be covered by some privilege. Mr. Mathes~ preference to refrain from testifying should not have factored into the courrs "availability" analysis as defined by Gonzalez. As noted above~ Mr. Mathes gave testimony favorable to the government at the first trial. The prosecutor at trial seemed to believe that 70 Mr. Mathes was not within the government's control because the terms of his cooperation agreement had expired and he had already received the full benefit of his bargain (A 571). However, cooperation agreements are not the only way that the prosecutor can ({compel" testimony.12 For example, CPL § 610.10(1) clearly states that ({a person at liberty within the state may be required to attend a criminal court action or proceeding as a witness by the issuance and service upon him of a subpoena". A court has the power to hold in contempt of court anyone who disobeys a lawfully issued subpoena (Judiciary law§ 750). Moreover, if the prosecutor believed that Mr. Mathes would not respond to a subpoena, he could have 12 The prosecutor's preference for this type of testimony at Mr. Henderson's trial was misguided. The criminal justice system currently faces an epidemic of wrongful convictions that have resulted from cooperation agreements and compensated-informant testimony. Testimony resulting from cooperation agreements and compensated informers (often "jailhouse snitches" who trade their testimony for lighter sentences) has been shown to be an important contributor to the problem of wrongful convictions. For example, the Innocence Project estimates that informant testimony has directly contributed to 15% of all wrongful convictions and subsequent exonerations (see www.innocenceprojectorg). In 2004, the Northwestern University School of Law Center on Wrongful Convictions published a study called The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row. The study noted that of the 111 capital convictions that have been exonerated by DNA evidence since 1970, informant testimony played a role in 45.9% of the cases. The study notes that informant testimony has become a punchline in the prison community, and inmates will jokingly say "Don't go to the pen, send a friend" or "If you can't do the time, just drop a dime" (see The Snitch System, at 2). Some jurisdictions are beginning to take action to counter the impact of this testimony. In 2011, the State of California imposed a corroboration requirement on such testimony (California Penal Code § 1111.5). The federal courts are beginning to examine the issue of jailhouse informants closely (Maxwell v Roe, 628 F3d 486 [9th Cir 2010]), and this subject has been the subject of intense debate at the Supreme Court level (see Cash v Maxwell,_ US_, 132 S Ct 611 [2012]). 71 requested a ({material witness order" (CPL § 620.20[1] [available when a person u [p] ossesses information material to the determination of such action; and [w]ill not be amenable or responsive to a subpoena at a time when his attendance will be sought"]). To borrow an analogy, a cooperation agreement is the ({carrot", but the prosecutor may also use the ({stick" to procure favorable testimony. Thus, Mr. Mathes was under the prosecutor's control and was available. It was unreasonable for the prosecutor and trial judge to conclude that Mr. Mathes was within Mr. Henderson's control because of their prior friendly, familial relationship. To the extent that the government may have meant to argue in the trial court that Mr. Mathes would have refused to give testimony even if called to court, he could have similarly been punished for contempt of court if he engaged in u[c]ontumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory" Qudiciary Law§ 750[5]). As the prosecutor correctly noted in the lower court, Mr. Mathes could not have been punished any further for his crime, and therefore he could not have lawfully invoked his right to refuse to incriminate himself (People v Grimes (289 AD2d 1072 [4th Dept 2001] [witness' refusal to answer is unjustified if his response could not 72 result in prosecution]; see also State of New York v Skibinksi, 87 AD2d 97 4 [4th Dept 1982]; citing Hoffman v United States, 341 US 479,486 [1951]; Southbridge Finishing Co. v Golding, 208 Mise 846, 852 [1955], affd 2 AD2d 882 [1st Dept 1956]). Moreover, if Mr. Mathes testified inconsistent with his prior testimony and harmed the government's case in a material respect, he could have been impeached with his prior testimony (CPL § 60.35 [1]). As a result, there were no impediments to Mr. Mathes' testimony. In fact, he had already given favorable testimony to the government that, in part, resulted in Mr. Henderson's previous conviction for two counts of homicide in the first trial. Mr. Mathes was available for testimony (i.e. not sick or incapacitated) and had already demonstrated his willingness to testify for the government and against Mr. Henderson. The lower court erred by refusing to give the missing witness charge. Moreover, the court was incorrect that Mr. Mathes was within Mr. Henderson's ({control" because Mr. Mathes is ({Mr. Henderson's cousin and they're good friends ... " (A 574-575). Pursuant to Gonzalez, a witness may be within control of the defendant if there is a friendship or close familial relationship. However, it is probably safe to say that Mr. Mathes' friendship with Mr. Henderson ended after Mr. Mathes accepted a favorable plea bargain 73 in exchange for testifying at Mr. Henderson's first trial, which resulted in Mr. Henderson's lifetime imprisonment for homicide. Contrary to the lower court's analysis, Mr. Mathes was within the government's ({control" because, on the facts of this case, he gave favorable testimony to the government In Gonzalez, the Court of Appeals noted that u[ a] missing witness charge would be appropriate however, if it is demonstrated that the party had the physical ability to locate and produce the witness, and there was such a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor" (Gonzalez, 68 NY2d at 429 [emphasis added]). The presence of a close familial relationship is not the final analysis. The lower court completely failed to analyze that Mr. Mathes would, as a matter of fact, give favorable testimony to the government, regardless of his familial relationship with Mr. Henderson. D. Conclusion This Court should reverse Mr. Henderson's conviction and this matter should be remanded for a new trial. 74 CONCLUSION There was insufficient evidence of felony murder. Moreover, the trial judge improperly refused to charge the jury with the lesser-included offense and further improperly failed to charge the jury regarding Mr. Mathes' status as a missing witness. As a result, this Court should dismiss the felony murder count and order a new trial. Dated: August 18, 2014 Rochester, New York Respectfully submitted, ~5ih David M. Abbatoy, Jr. THE ABBA TOY LAW FIRM, PLLC 339 East Avenue, Suite 300 Rochester, New York 14604 585.348.8081 dma@abbatoy.com 75 STATE OF NEW YORK* COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK -vs- WILLIAM A. HENDERSON, Appellant AFFIRMATION OF SERVICE DAVID M. ABBA TOY, JR., ESQ., an attorney-at-law duly admitted to practice in the State of New York, hereby affirms under the penalty of perjury that he is not a party to this action, is over 18 years of age, and has a business address of 339 East Avenue, Suite 300, Rochester, New York 14604. On August 19, 2014, your deponent served the within Appellant's Brief and Appendix by depositing a true copy thereof enclosed in a post-paid wrapper in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to the following people: Mr. William Henderson, 06-A-2008 GREEN HAVEN CORRECTIONAL FACILITY PO Box 4000 Stormville, New York 12582-4000 Kathleen B. Hogan, Esq. (three copies of brief and appendix) Warren County District Attorney 1340 State Route 9 Lake George, New York 12845 DATED: Rochester, New York August 19, 2014 ~ DAVID M. ABBA TOY, JR., ESQ.