People v. Haims

Harwood, J.,

dissents and votes to modify the judgment, on the law, by reversing the defendant’s convictions of attempted rape in the first degree and murder in the second degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and as so modified, to affirm the judgment of conviction, with the following memorandum: I would have no difficulty voting to affirm a judgment rendered upon a verdict that the defendant was guilty of intentional murder, had the jury so found. The fact remains, however, that it did not do so and I cannot vote to affirm the apparent compromise verdict that the defendant is guilty of felony murder and attempted rape.

The People’s theory at trial was that the defendant intended to have forcible sex with the victim, and that his striking her on the head with a club more than 25 times constituted an attempt to commit rape. However, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620, 621), I cannot agree that the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt of attempted rape by forcible compulsion (Penal Law § 130.35 [1]). As the majority points out, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). However, "[f]elonious intent alone is not enough, but there must be an overt act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause” (People v Mills, 178 NY 274, 284-285). "The law * * * considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference” (People v Rizzo, 246 NY 334, 337). I do not agree that the repeated bludgeoning of the victim over the head with a wooden shillelagh would "naturally effect” the result proposed by the People (i.e., rape by forcible compulsion); nor was it "so near to [the] accomplishment [of rape] that in all reasonable probability the crime itself would have been committed but for timely interference” (supra, at 337). Aside from the defendant’s erotic fantasies of frightening the victim into having sex with him, the record is devoid of evidence that the defendant did or said anything tending to effect a rape. Unlike People v Pereau (64 NY2d 1055) cited by the majority here, there was no extraneous event which interfered with this defendant’s ability to carry out his original intent to rape his victim. In that case the victim, who was told by the defendant that he "wanted” her, was able to gain control of the knife which he held against her breast and thereby prevent him from completing his attempted rape. Likewise in People v Bruce (162 AD2d 604), the defendant’s intended rape was interrupted by Housing Police. In People v Troy (119 AD2d 880) all of the defendant’s overt acts were in furtherance of his statement that he wanted to have sex with his victim and he was only prevented from carrying out his intent by the fortuitous intervention of a passerby. The defendant in this case, on the other hand, made no statement to his victim that he planned to have sex with her, none of his overt acts — bludgeoning her 25 times with a shillelagh without making any sexual advances toward her — can conceivably be characterized as being in furtherance of his original admitted intent to forcibly have sex with her and, most significantly, there was no extraneous event which prevented the defendant from carrying out his intended rape.

It is apparent to me, based upon the evidence adduced at the trial that defendant had abandoned his intent to rape his victim and instead decided to bludgeon her to death. The jury which acquitted defendant of intentional murder had heard testimony from his psychiatric expert that the defendant had a psychosexual disorder and did not know what he was doing when he repeatedly struck his victim. They convicted him of the lesser included offense of manslaughter in the second degree. I agree that this conviction should be affirmed. However, the conviction of attempted rape in the first degree must, for the foregoing reasons, be reversed as must the felony murder conviction because the People did not prove that the homicide was committed "in the course of” the crime of attempted rape (cf., People v Joyner, 26 NY2d 106, 109).