People v. Joyner , 32 A.D.2d 260 ( 1969 )

McNally, J.

The record, in the absence of prejudicial error, would sustain the verdict of defendant’s guilt of felony murder. Appellant relies on several assignments of error, of which we find all but two without merit.

The evidence enabled the jury to find either that the killing was sequential to a robbery or attempted robbery, or that the killing preceded the robbery or its attempt. Defendant requested and was refused the charge ‘ ‘ that if the jury believes the defendant assaulted the deceased, Hicks, and caused the death of the deceased, Hicks, but the intent to commit the felony did not arise until after the assault, that there can be no conviction on a felony murder ’ ’. Also, ‘1 that a felony must precede the homicide and the felony, or an intent to commit the felony, if it occurs after the assault, there can be no conviction for felony murder ”, and “ I request a charge that if there is a doubt as to whether or not the defendant intended to rob the deceased, and that that intention preceded the assault, that the jury must decide the doubt in favor of the defendant. ’ ’

There was testimony that defendant, while the corpse lay on the sidewalk, took some change from the pocket of the deceased, explaining to the onlookers that it was owed to him by the dead man. The meaning to be ascribed to this ghoulish conduct came into question during consideration by the trial court of the jury’s written request for an instruction. That request read: ‘ ‘ Is a felony robbery committed if money is taken from a dead man? ” The court replied: “ The answer is yes. If a man or woman kills another for the purpose of robbing him, and in the course of robbing him, or after he has robbed him, in order to get away and retain whatever ill-gotten gains he had, any of those circumstances constitutes a felony murder.” The difficulty with this answer is that it completely ignores the possibility that the jury might well have pondered whether deféndant, without prior intent to commit the felony of robbery, had for the first time, following the stabbing, formed an intent to take the deceased’s money. Were that the situation, the killing could not possibly have been deemed felony murder, whatever other form of homicide it might have been. The jury’s concern with the sequence of the predicate felony and the killing is evidenced by the following question immediately after the additional instruction: ‘ ‘ juror so. 12: Tour Honor, I think it might help the jury—it is necessarily for my own sake, but it might help if you could point out' very clearly what distinguishes a first-degree felony murder and a first-degree manslaughter charge, and I would like to ask at the same time that you tell the jury whether or not it is possible to commit a first-degree manslaughter with felony. ’ ’

In the light of the foregoing, 'the jury was enabled to find the defendant guilty of a felony murder although the intent to commit the predicate felony may have followed the killing. It is dear that the felonious intent of the predicate felony must be contemporaneous with or precede the killing. (People v. Wagner, 245 N. Y. 143, 148-149; People v. Moran, 246 N. Y. 100.) Moreover, robbery requires the taking of property against one’s will. (Former Penal Law, § 2120.) If the taking was after the killing, there is lacking the opposing will.

One other point is worthy of notice. The difficulty encountered in communication with the deaf-mute witness may be eliminated on retrial by advance notice of the problem. His testimony in the printed record is clear enough considering the difficulties encountered. The cross-examination does not appear to have been thwarted to any meaningful degree. Furthermore, the evidence is cumulative. The quality of interpretation was, therefore, in our opinion not prejudicial to defendant, but this possible threat to a fair trial should be obviated now that attention has been directed to it.

The judgment should be reversed on the law and a new trial directed.