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Supreme Court, Monroe County, New York.

The PEOPLE of the State of New York, Plaintiff, v. John F. OWENS, Defendant.

Decided: May 30, 2001

Kevin M. Doyle, Capital Defender (William T. Easton and Patricia Warth of counsel), and Peter J. Pullano for Defendant. Howard R. Relin, District Attorney of Monroe County (Michael C. Green and David A. Foster of counsel), for plaintiff.

On April 19, 2001 a jury convicted Defendant, John F. Owens, of two counts of First Degree Murder pursuant to Penal Law § 125.27(1)(a)(vii) relating to the death of two separate victims, and two counts of First Degree Rape pursuant to Penal Law § 130.35 relating to a third victim.   Just before the presentation of evidence in the sentencing phase of trial, Defendant by Notice of Motion filed on April 23, 2001 sought permission to give an unsworn allocution following summations.   The People opposed Defendant's motion.

 This Court finds that Defendant has no statutory nor constitutional right to allocute before a sentencing jury in a capital case.   See McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).   While Defendant correctly points out that Criminal Procedure Law (“CPL”) § 380.50(1) 1 allows a defendant to allocute before a sentencing court in a non-capital case, sentencing in a death penalty case is directed not by a judge but a by a jury.   Indeed CPL § 400.27, which embodies New York's intricate death penalty sentencing scheme, does not provide for a Defendant's unsworn allocution.   CPL § 400.27 satisfies the constitutional mandate “of individualized ․ sentencing in a capital case by providing for an expansive presentation of any mitigating evidence to the sentencing jury.”   People v. Harris, unpublished, p. 3 (Sup.Ct., Kings Cty. [Feldman, J.] 1998).   For these reasons, this Court denied Defendant's request in its entirety on the record on April 25, 2001, and thus specifically rejected the reasoning of the courts in the capital cases of People v. Shulman, unpublished, p. 2 (Suffolk Cty. Ct. [Pitts, J.] 1999) and People v. Harris, supra. at 3-4.   This Court finds however, that nothing would limit defense counsel from reciting Defendant's words in its closing statements.

Defendant's renewed motion entitled DEF-86 is denied in its entirety.


1.   Criminal Procedure Law § 380.50 provides in relevant part:At the time of pronouncing sentence, the court must accord the prosecutor an opportunity to make a statement with respect to any matter relevant to the question of sentence.   The court must then accord counsel for the defendant an opportunity to speak on behalf of the defendant.   The defendant also has the right to make a statement personally in his or her own behalf, and before pronouncing sentence the court must ask the defendant whether he or she wishes to make such a statement.


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