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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Appellant, v. John COUSER, Defendant-Respondent.

Decided: July 09, 1999

PRESENT:  PINE, J.P., LAWTON, WISNER, HURLBUTT and CALLAHAN, JJ. Victoria M. Anthony, Syracuse, for plaintiff-appellant. J. Scott Porter, Syracuse, for defendant-respondent.

The issue presented in this noncapital murder case is whether the limitation on accomplice liability set forth in the statutory definition of first degree felony murder (Penal Law § 125.27[1][a][vii] ) is unconstitutionally vague.   Clause (vii) of Penal Law § 125.27(1)(a) provides that Penal Law § 20.00 is not applicable to that degree of felony murder “unless the defendant's criminal liability * * * is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter” (emphasis added).   County Court refused to afford the term “command” its plain meaning and determined that, in the absence of a statutory definition, that limitation on accomplice liability is unconstitutionally vague.   The court therefore granted defendant's motion to dismiss the second count of the indictment charging defendant with first degree felony murder based on the allegation that he commanded the death of the victim or intended victim.   On this appeal by the People, we conclude that the order should be reversed, the motion denied and the second count of the indictment reinstated.   We hold that, as applied to this defendant, the limitation on accomplice liability set forth in clause (vii) of Penal Law § 125.27(1)(a) is not unconstitutionally vague in violation of the Due Process Clauses of the U.S. or N.Y. Constitution.


Defendant is allegedly a leader of a Rochester street gang known as the G-Boyz.   While he was incarcerated in Rochester awaiting trial for robbery and attempted murder, he allegedly directed a gang member, James Stanback, to murder the complainant, who was then living in Syracuse.   On February 23, 1997, a hit squad, led by Stanback and acting on information supplied by defendant, allegedly entered the Syracuse home of the complainant to kill him.   Instead, they found two young children and an elderly woman.   All three were shot execution style in the head, resulting in the death of the woman and serious injuries to the children.

Defendant was indicted for several crimes arising from that incident, including, in the second count, the crime of murder in the first degree in violation of clause (vii) of Penal Law § 125.27(1)(a).   After indictment, the prosecutor allowed the statutory 120-day period to elapse without filing a notice of intent to seek the death penalty (see, CPL 250.40).   Defendant's pretrial motions included a motion to dismiss the second count of the indictment on the ground that the limitation on accomplice liability set forth in clause (vii) of Penal Law § 125.27(1)(a) is unconstitutionally vague (People v. Couser, 176 Misc.2d 86, 674 N.Y.S.2d 887).   Reargument was granted to enable the Attorney-General to appear pursuant to Executive Law § 71.   Upon reargument, the court adhered to its earlier decision, determining that this provision of the death penalty law enacted in 1995 (L. 1995, ch. 1) is unconstitutionally vague (People v. Couser, 176 Misc.2d 101, 674 N.Y.S.2d 887).


In essence, clause (vii) of Penal Law § 125.27(1)(a) elevates the crime of felony murder from murder in the second degree under Penal Law § 125.25(3) to murder in the first degree if the homicide is intentional.   While a person is guilty of second degree felony murder if, “in the course of and in furtherance of” one of the designated felonies or in “immediate flight therefrom”, he “causes the death of a person other than one of the participants”, a person is guilty of first degree felony murder only if he intentionally causes the death of the victim or intended victim.

There is another important distinction between the two degrees of felony murder that is pertinent here.   A person may be convicted of second degree felony murder without committing the homicidal act if, “acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids” in the commission of the underlying felony (Penal Law § 20.00).   A person, however, may not be convicted of first degree felony murder without committing the homicidal act unless that person “commanded another person to cause the death of the victim or intended victim” (Penal Law § 125.27[1][a][vii] ).   Thus, accomplice liability under the first degree felony murder statute may not be predicated upon proof that a defendant solicited, requested, importuned or intentionally aided another in the commission of the offense.  “[T]he Legislature decided that, for this provision alone, only one of the multiple ways a person may participate as an accomplice * * * will suffice for liability for murder in the first degree” (Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 125.27, at 390).  “The provision excludes defendants whose criminal liability under this subparagraph is based upon the conduct of another person, unless the defendant commanded another person to cause the death of the victim or intended victim” (Mem of Assembly Codes Comm., Bill Jacket, L. 1995, ch. 1, at 3;  see, Mem. of Atty. Gen., id., at 2).

The reason for the limitation on Penal Law § 20.00 liability is rooted in death penalty jurisprudence.   Although it has never been held that the death penalty is reserved, in the case of felony murder, for the actual murderer or the person who commanded him, the Supreme Court held in Enmund v. Florida, 458 U.S. 782, 787, 102 S.Ct. 3368, 73 L.Ed.2d 1140, that death is not a valid penalty for someone who “neither took life, attempted to take life, nor intended to take life.”   Enmund was a getaway driver who did not share his codefendants' intent to kill.   In Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127, reh. denied 482 U.S. 921, 107 S.Ct. 3201, 96 L.Ed.2d 688, however, the Supreme Court approved the death penalty for a defendant who actually participated in the events leading to the deaths although he was not the person who shot the victims.   The Court stated that the death penalty is an appropriate penalty for someone who is a major participant in the underlying felony and who acts with reckless indifference to human life (see, Tison v. Arizona, supra, at 158, 107 S.Ct. 1676).

 Although the Court declined “to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty” (Tison v. Arizona, supra, at 158, 107 S.Ct. 1676), a person who participates in a felony murder by commanding the death of the victim clearly qualifies as a major participant in that crime.   The principle “He who gives an order is held to be the doer” is expressed in the maxim “Qui mandat ipse fecisse videtur ” (Burton, Legal Thesaurus, at 85 [command] [2d ed. 1992] ).   At common law, “he who in any wise commands or counsels another to commit an unlawful act is accessory to all that ensues upon that unlawful act * * *. As if A. commands B. to beat C., and B. beats him so that C. dies;  B. is guilty of murder as principal and A. as accessory” (4 Blackstone's Commentaries, at 31-32 [1857] ).   More recently, it has been held that “[t]he moral guilt and personal responsibility of one who commands another to commit murder justifies the death penalty” (Hopkinson v. State, 664 P.2d 43, 74 [Wyo.Sup.Ct.1983],cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246).

Congress has imposed a similar limitation on accomplice liability by making it a Federal offense punishable by death for “any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony” to counsel, command, induce, procure or cause the intentional killing of any Federal, State, or local law enforcement officer engaged in the performance of his or her official duties (21 USC § 848[e][1][B] ).   Under Federal law, accomplice liability typically is predicated upon proof that a defendant aided, abetted, counseled, commanded, induced or procured the commission of the offense (18 USC § 2[a] ).  “Congress's choice of terms indicates that, while it intended some accomplices of law enforcement killers to be subject to the death penalty, Congress did not intend the complicity portion of subsection (e)(1)(B)-the non-triggerman portion-to be as broad as the accomplice liability imposed by 18 USC § 2. Quite the contrary, the conspicuous absence of the terms ‘aid’ and ‘abet,’ and the absence of similarly broad language like ‘participates in,’ indicates that Congress meant to extend the (e)(1)(B) death penalty beyond triggermen only to those accomplices who exercise authority over the triggerman, such as by ordering the killing” (Serr, Of Crime and Punishment, Kingpins and Footsoldiers, Life and Death:  The Drug War and the Federal Death Penalty Provision-Problems of Interpretation and Constitutionality, 25 Ariz. St. L.J. 895, 909 [1993] ).   Legislative history reported by Serr indicates that the distinction drawn by Congress was intended to restrict the class of people eligible for the death penalty to “boss-accomplices” who “order the killing of a law enforcement officer” (id., at 917).


 The People argue that the court erred in analyzing the constitutionality of clause (vii) of Penal Law § 125.27(1)(a) from an Eighth Amendment perspective.   We agree.   Because this is not a death penalty case, defendant's vagueness argument should be measured by due process, not Eighth Amendment, standards.

When the Legislature enacted the death penalty law in 1995, it greatly expanded the statutory definition of murder in the first degree.   The 12 categories of murder in the first degree set forth in Penal Law § 125.27(1)(a) are both statutory definitions of the crime and aggravating factors that establish eligibility for the death penalty (see, CPL 400.27 [3] ).   Where a prosecutor has elected to seek the death penalty pursuant to CPL 250.40 and the defendant's guilt of murder in the first degree under one or more of the clauses of Penal Law § 125.27(1)(a) has been established at trial by proof beyond a reasonable doubt, a separate sentencing proceeding is mandated by CPL 400.27 to determine whether the defendant will be sentenced to death or life imprisonment without parole.   At that sentencing proceeding, the jury is required to weigh the aggravating circumstances of the crime as found by its trial verdict, and any additional aggravating factor proven at the sentencing proceeding, against the evidence in mitigation received at the sentencing proceeding.   That type of statutory scheme was approved by the Supreme Court in Lowenfield v. Phelps, 484 U.S. 231, 244-245, 108 S.Ct. 546, 98 L.Ed.2d 568, reh. denied 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286.

It is because each clause of Penal Law § 125.27(1)(a) defines not only a crime but also eligibility for the death penalty that the court measured the constitutionality of clause (vii) by Eighth Amendment standards.   The issue, however, is not whether that clause is sufficiently definite to serve as an aggravating factor establishing eligibility for the death penalty.   The issue is whether that clause is sufficiently definite to serve as the statutory definition of a crime.   A determination that the clause is sufficiently definite to serve as the basis for a criminal prosecution would not be inconsistent with a determination that it is not sufficiently definite to serve as the basis for the imposition of the death penalty (see, Maynard v. Cartwright, 486 U.S. 356, 361-362, 108 S.Ct. 1853, 100 L.Ed.2d 372).

Eighth Amendment analysis “is an anomaly of the Supreme Court's death penalty jurisprudence * * *.   Simply put, death is different * * *.   That difference creates a unique ‘need for reliability on the determination that death is the appropriate punishment in a specific case’ ” (Holman v. Page, 7th Cir., 95 F.3d 481, 487, reh. denied 7th Cir., 102 F.3d 872, cert. denied 520 U.S. 1254, 117 S.Ct. 2414, 138 L.Ed.2d 179, quoting Zant v. Stephens, 462 U.S. 862, 884-885, 103 S.Ct. 2733, 77 L.Ed.2d 235;  see, People v. Smith, 63 N.Y.2d 41, 72-73, 479 N.Y.S.2d 706, 468 N.E.2d 879, cert. denied 469 U.S. 1227, 105 S.Ct. 1226, 84 L.Ed.2d 364, reh. denied 471 U.S. 1049, 105 S.Ct. 2042, 85 L.Ed.2d 340).   Those concerns are not present here (see, Holman v. Page, supra, at 487).


 The court also erred in failing to accord the statute the strong presumption of constitutionality to which it is entitled.   All statutes, even statutes establishing crimes punishable by death, are presumed to be constitutional (see, Matter of Hynes v. Tomei, 92 N.Y.2d 613, 626, 684 N.Y.S.2d 177, 706 N.E.2d 1201, cert denied 527 U.S. 1015, 119 S.Ct. 2359, 144 L.Ed.2d 254;  see also, People v. Davis, 43 N.Y.2d 17, 30, 400 N.Y.S.2d 735, 371 N.E.2d 456, cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88, rearg. dismissed 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232).   That presumption may be overcome only with proof beyond a reasonable doubt (see, People v. Scalza, 76 N.Y.2d 604, 607, 562 N.Y.S.2d 14, 563 N.E.2d 705).   Because of that presumption, the court here was required, if possible, to construe the statute to preserve its constitutionality (see, United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989;  People v. Nieves, 36 N.Y.2d 396, 400, 369 N.Y.S.2d 50, 330 N.E.2d 26;  People v. Kaiser, 21 N.Y.2d 86, 103, 286 N.Y.S.2d 801, 233 N.E.2d 818, affd. 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274, reh. denied 394 U.S. 1025, 89 S.Ct. 1622, 23 L.Ed.2d 50).   If the statute was susceptible of different interpretations, the court was obligated “to embrace that which will preserve its validity” (People v. Finkelstein, 9 N.Y.2d 342, 345, 214 N.Y.S.2d 363, 174 N.E.2d 470, rearg. denied 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111).  “[I]f the general class of offenses to which the statute is directed * * * can be made constitutionally definite by a reasonable construction of the statute, [the court was] under a duty to give the statute that construction” (United States v. Harriss, supra, at 618, 74 S.Ct. 808;  see, People v. Nelson, 69 N.Y.2d 302, 308, 514 N.Y.S.2d 197, 506 N.E.2d 907;  Matter of Patricia A., 31 N.Y.2d 83, 87, 335 N.Y.S.2d 33, 286 N.E.2d 432).

 The court here refused to apply the commonly understood meaning of the term “command” in order to avoid the constitutional challenge, stating that it was the duty of the Legislature and not the courts to give the term meaning.   In so doing, the court, under the guise of legislative deference, invalidated a provision that is presumed constitutional precisely because of that deference.   That was error.  “[W]ords and phrases used in a statute should be given their ordinary meaning when, as here, the Legislature has given no indication that a different meaning was intended * * *.   This is particularly apt when it is claimed that the statute might otherwise lack sufficiently definite standards or guidelines to satisfy the requirements of due process” (People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513, appeal dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254;  see, People v. Lombardo, 61 N.Y.2d 97, 104, 472 N.Y.S.2d 589, 460 N.E.2d 1074).


 When a penal law is challenged on the ground of vagueness, there are two due process requirements that must be met:  “[f]irst, the statute must provide sufficient notice of what conduct is prohibited;  second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement” (People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355;  see, People v. First Meridian Planning Corp., 86 N.Y.2d 608, 621-622, 635 N.Y.S.2d 144, 658 N.E.2d 1017).   Defendant does not contend that clause (vii) of Penal Law § 125.27(1)(a) fails to provide sufficient warning of what conduct is prohibited.   Indeed, it cannot be said that the clause fails to put a person of ordinary intelligence on notice that it is a crime of the highest magnitude to participate in a felony murder by commanding the death of the victim.   Rather, defendant contends that police, courts and juries may be unable to draw the distinction between a person who participates in a felony murder by commanding the death of the victim and one who participates by requesting, soliciting or importuning that death.   Defendant contends that the term “command” may be synonymous with the terms “request”, “solicit” and “importune” in some instances and that, without objective standards, the clause will be prone to arbitrary enforcement.

The plain meaning of each of those terms, however, is not the same.   The verb “command” means “to direct authoritatively”, i.e., “to give an order or orders” (Webster's Third New International Dictionary 455).   In contrast, the verb “request” means “to ask”, “solicit” means “to approach with a request or plea”, and “importune” means “to beg, urge, or solicit persistently or troublesomely” (id., at 1929, 2169, 1136).   Indeed, antonyms of the verb “command” include “plead, beg” (Random House Thesaurus 145 [College ed. 1992] ) and “request” (Statsky, West's Legal Thesaurus/Dictionary 151 [1986] ).

 The fact that there may be situations where the line between a command and, for example, a solicitation is blurred does not render the clause unconstitutionally vague.  “[E]xcept in rare circumstances not relevant here, a vagueness challenge must be addressed to the facts before the court * * *.   Thus, if the actions of the defendant[ ] are plainly within the ambit of the statute, the court will not strain to imagine marginal situations in which the application of the statute is not so clear” (People v. Nelson, supra, at 308, 514 N.Y.S.2d 197, 506 N.E.2d 907;  see, Maynard v. Cartwright, supra, at 361, 108 S.Ct. 1853).   Here, there was sufficient evidence before the Grand Jury, if believed, to establish the existence of the gang, the membership of defendant and Stanback in the gang and defendant's authoritative position within the gang.   While there was no direct proof of the “command” that was given, there was proof that defendant summoned Stanback to the jail so that arrangements could be made to “take care of the [complainant's] family” and that Stanback thereafter allegedly told others that he would “go out and personally take care of the [complainant's] family to keep [the complainant] from testifying against his boy”.   After the crime, defendant allegedly was upset because Stanback failed to kill the complainant.   As the police closed in, defendant allegedly made inquiries concerning who knew about the plot and told others that if anyone asks “did [Stanback] go and do that for [me] * * * say hell no * * * [I] ain't tell him to do it”.   In addition, defendant made admissions that he hired a private detective to locate the complainant for Stanback.   That evidence, if believed, establishes that defendant did not merely request, solicit or importune someone to kill the complainant but acted as a boss-accomplice to order a member of his gang to commit the crime.


Accordingly, the order should be reversed, defendant's motion to dismiss the second count of the indictment denied, the second count of the indictment reinstated and the matter remitted to Onondaga County Court for further proceedings on the indictment.

Order unanimously reversed on the law, motion to dismiss second count of the indictment denied, second count of the indictment reinstated and matter remitted to Onondaga County Court for further proceedings on the indictment.


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