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Farrell v. Czarnetzky

decided: September 30, 1977.

EDWARD FARRELL, PETITIONER-APPELLANT,
v.
JACK CZARNETZKY, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT-APPELLEE. CHAUNCEY REIDOUT, PETITIONER-APPELLEE, V. ROBERT HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-APPELLANT



Appeals from judgments entered in the Southern District of New York on state prisoners' petitions for writs of habeas corpus (1) denying Farrell's petition in No. 76-2131, Charles M. Metzner, District Judge, and (2) granting Reidout's petition in No. 76-2144, Marvin E. Frankel, District Judge, the sole issue being whether, in the light of Patterson v. New York, 432 U.S. 197, Moore, Oakes and Timbers, Circuit Judges. Oakes, Circuit Judge, concurring.

Author: Per Curiam

After the argument of the instant consolidated appeals, the Supreme Court heard and decided Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, 45 U.S.L.W. 4708 (1977). We hold that Patterson controls our decision here.

The appeals before us are from judgments entered in the Southern District of New York on state prisoners' petitions for writs of habeas corpus (1) denying Farrell's petition in No. 76-2131, Charles M. Metzner, District Judge, and (2) granting Reidout's petition in No. 76-2144, Marvin E. Frankel, District Judge.

Under attack on the instant appeals is New York's first degree robbery statute, N.Y. Penal Law § 160.15(4) (McKinney 1975), which permits a defendant who, in the course of a robbery, "displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" to raise as "an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." If he does not sustain his burden of proving the affirmative defense by a preponderance of the evidence, the defendant can be convicted of first degree robbery. If he does sustain the burden, he will be convicted of second degree robbery. N.Y. Penal Law § 160.10(2)(b) (McKinney 1975). By placing the burden of proving the affirmative defense on a defendant, New York was said, prior to the Supreme Court's decision in Patterson, to have contravened the due process clause of the Fourteenth Amendment as interpreted in Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975).

The Supreme Court in Patterson, however, restricted Mullaney by holding that a state, without violating the Constitution, may place on a defendant the burden of proving by a preponderance of the evidence a matter not defined by the legislature as a necessary ingredient of the crime but which mitigates the degree of the offense. Under the New York first degree robbery statute, possession of a weapon actually capable of causing death is not a necessary ingredient of the offense, since the prosecutor is not required to prove the presence of such a factor in order for a defendant to be convicted of first degree robbery. Moreover, proof that the gun was not capable of causing death does not entirely exonerate the defendant of criminal liability.

We hold that under Patterson the New York first degree robbery statute is constitutional.

Affirmed as to the denial of the Farrell petition (No. 76-2131); reversed as to the grant of the Reidout petition (No. 76-2144).

Disposition

Affirmed as to the denial of the Farrell petition (No. 76-2131); reversed as to the grant of the Reidout petition (No. 76-2144).

OAKES, Circuit Judge (concurring):

I join in the judgment of the court, but for somewhat different reasons.

In Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), the Supreme Court held unconstitutional Maine's allocation of the persuasion burden to murder defendants on the mitigating circumstance of action "in the heat of passion on sudden provocation." Id. at 684-85, quoting Me. Rev. Stat. Ann., Tit. 17, § 2551 (1964). In Patterson v. State of New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281, 45 U.S.L.W. 4708 (1977), the Court upheld New York's allocation of the persuasion burden to murder defendants on the mitigating circumstance of action "under the influence of extreme emotional disturbance." Id., quoting N.Y. Penal Law § 125.20(2) (McKinney 1975). Mr. Justice Powell, who wrote Mullaney, dissented in Patterson. He criticized the purported distinction between the two cases as purely "formalistic." Id. at 221 -225, 45 U.S.L.W. at 4714, 4715. Unlike the Maine statute,*fn1 the New York legislature denoted the mitigating factor as an affirmative defense without mentioning either the presence or absence of the factor in the core definition of the crime.*fn2

Farrell and Reidout question the constitutionality of New York's robbery statute to the extent that it requires a defendant to prove that his firearm was unloaded. If he can prove that it was, then his crime is mitigated from first to second degree robbery.*fn3 With all due respect, the Patterson decision, and its failure to overrule Mullaney, see 45 U.S.L.W. at 4712-13, raises as many questions as it answers.

First, it could be argued that the statute effects a shift of the persuasion burden on an element of the crime. Because a defendant may be convicted of first degree robbery when, inter alia, he "displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm," N.Y. Penal Law § 160.15(4) (McKinney 1975) (emphasis added), the core definition of the crime does not require that the weapon be loaded. It need only "appear" to be such. The operative effect of the statute, however, is to create a presumption that the weapon is loaded. The defendant must rebut that presumption or stand convicted of first degree robbery. If the defendant's rebuttal fails, he stands convicted of a crime under the statute which, even though drafted not to require that the weapon be loaded, in fact so operates. Otherwise, it would make no sense to differentiate first from second degree robbery on the basis of whether a weapon is loaded. Because the defendant ...


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