Monday, October 17, 2011

Murders and Manslaughters

There is always a difficult question faced as a prosecutor. It comes from the family of a homicide victim in the days and weeks after a suspect is apprehended. Emotions are raw. Pain, loss, grief, anger, and revenge mix together. The deceased's loved ones want a measure of justice.

It's a variation of these questions - Why is it second degree murder, not first degree? Why is this a manslaughter case and not murder? Will he face the death penalty?

Homicide does not always equal murder.

In New York State, there are different levels of homicide crimes I will attempt to explain. First degree murder, second degree murder, manslaughter in the first degree, manslaughter in the second degree, and criminally negligent homicide. There are various charges for vehicular manslaughter, but we will address those in a future post.

Let's start with the least serious and move up:

Criminally negligent homicide: A person causes someone's death through criminal negligence. This is more than negligence in a civil case, so it's not just rear-ending another person. One of my case examples - defendant was driving a van without brakes. The rotors and brake pads were worn through so badly that they didn't exist any more so in effect there was no braking mechanism and there was just metal grinding on metal. Inevitably, his brakes cut out on a decline in a road and his van struck and killed a pregnant woman walking across the street. The law defines criminal negligence as a person who fails to see unjustifiable risks in their acts that the average person would see.

Manslaughter in the second degree: Recklessly causing the death of another person. This is a step up from criminal negligence. Acting reckless is when a person is aware of the risks of their behavior, but goes ahead with the act anyway. Example - a person showing off his loaded gun to a friend by twirling it around on his finger. It fires and kills his friend. The person didn't intend to kill his friend, but we can all agree he was acting recklessly.

Manslaughter in the first degree: Intending to cause someone serious physical injury and the act kills the person. Example: A suspect intends to shoot his victim in the knee cap. He wants to punish the victim and make sure he doesn't walk again. The shot actually hits the victim in the femoral artery in the thigh and the victim dies. Generally, we can't say the suspect intended to kill the victim by shooting him in the knee. He intended to cause serious physical injury and in the process killed him.

Murder in the second degree: 1) Intentionally killing someone, 2) Recklesssly killing someone by doing an act that shows a depraved indifference to human life, or 3) the suspect commits a burglary, robbery, kidnapping, rape, or some other listed crime and in the course of that crime someone is killed.

1) This is what we see most often. A person shoots another person intending to kill him and succeeding. 2) The second situation is less frequent. An example is a person firing a gun into a crowd of people killing someone. It is an act that demonstrates a callous disregard for human life. 3) Someone breaks into a house and during the burglary he kills a person who tries to stop him. See an article about a now infamous actor, Lillo Brancato,charged with this here.

Murder in the first degree: A person intentionally kills someone (murder in the second degree) and: 1) the victim is a police or corrections officer, 2) the victim was a witness to a crime, 3) the murder was done for money, 4) the murder was done during a first degree burglary, first degree robbery, first degree kidnapping or other listed crime, 5) the suspect causes serious physical injury to someone other than the deceased victim, or 6) the victim was a judge.

Notice police officers and judges fall in this section, not assistant district attorneys.

There are additional sections and scenarios that I did not discuss because they do not occur as frequently. If you want to read them all, look here.

It is difficult to explain to a family who lost a member how the facts of the case fit into a certain section in New York's Penal Law. I try to spend as much time as necessary and answering every question no matter its content is the best way to start the family through the legal process. There are so many laws and nuances that it is difficult for even many lawyers to comprehend.

And you ask about the death penalty? That is the easier question. The New York State Court of Appeals declared the death penalty in its current form illegal in 2004, and again in 2007 and the New York State Legislature has not moved to change the provision since. So, there isn't a death penalty in New York unless the Legislature drafts a new statute.


  1. Great post. Very informative. It's a little different in PA but every bit as complicated. Being a family member of a victim, it is very difficult to understand all the nuances.

  2. Prosecutor's DiscretionOctober 17, 2011 at 1:51 PM

    Thank you. Every state I've looked at is very different and in NY everything is complicated. Hopefully, we can explain it well enough!

  3. I found your blog through Lisa's. Very informative, thanks for posting. One thing I'm curious about is how 'Lesser Included Offense' works in regards to Murder/Manslaughter.

  4. Lesser included offenses (LIO) are lower level crimes that are included in higher level crimes. A robbery charge includes a larceny charge, so there is no need to charge it. It is an LIO. Assault with a weapon already includes a simple assault. It is an LIO.

    Each of the homicide sections discussed is a LIO of the one listed below it. Criminally Negligent Homicide is a LIO of Manslaughter 1. All of these are LIO of murder 1. We would only indict a defendant for the highest charge we can prove.

    LIO's matter because defendants can only plead guilty to LIO that are included in the highest charge. If a defendant is charged with murder 2, he can still plead guilty to manslaughter 1 as a LIO even if he wasn't charged with it because it's an LIO that is included in the higher charge. He can't plead guilty to robbery because it is not an LIO of murder 2.

    There are restrictions on how much a lesser charge a defendant can plead guilty to depending on the highest charge. Murder 2 - we can't reduce it to criminally negligent homicide for the purposes of a plea. Murder 1 - we can't reduce it to manslaughter 1 for a plea.

    As I re-read, I realize there's a lot of info in this post to digest. Keep the questions coming.

  5. Do you think the New York State legislature will address the death penalty legislation anytime in the near future?

  6. Not anytime soon. It's too much of a polarizing issue in New York State, especially in light of the focus on the current economic crisis.