People v. Schroedel

FRANK J. LaBUDA, J. This matter comes on by application of defendant to plead guilty to indictment No. 115-99 (charging him with two counts of murder in the first degree, three counts of murder in the second degree, four counts of burglary in the first degree, two counts of criminal possession of a weapon, three counts of attempted murder in the first degree, one count of attempted murder in the second degree and three counts of assault in the first degree) without the consent of the District Attorney nor the permission of the court, during the pendency of the CPL 250.40 120-day period for the filing of a notice of intent to seek the death penalty. The defendant herein argues that under any definition nothing attains the status of "pending" until it has begun but has not yet been completed. The defendant's argument is unpersuasive. CPL 250.40 specifies that the time period in which the prosecution must decide to seek the death penalty is 120 days and said time period begins at "the defendant's arraignment upon the indictment charging the defendant with murder in the first degree" (CPL 250.40 [2]). Whether the notice itself is pending (since it has not yet been filed) or the time period in which the prosecution has to file such notice is pending (it began on July 8, 1999 and runs until November 5, 1999) is splitting the proverbial legal hairs against the rationale of the clear legislative intent of CPL 250.40 to give the People sufficient time to decide on the tough and troubling question of whether or not to seek the death penalty and the rationale of Matter of Hynes v Tomei (supra). This court rejects the defendant's argument that CPL 250.40 is not a right for the People but rather only a limitation on the death penalty in favor of the defendant. The clear legislative intent is that the People of the State of New York have the right to seek the death penalty for certain specifically enumerated criminal conduct. This right cannot and ought not be compromised by defense tactics even when the notice is not "pending." To rule otherwise would be to abrogate the legislative intent to provide for the death penalty. This court holds that the defendant herein may not plead to murder in the first degree under either count 1 or count 2 until either: 1. the People consent to such plea; 2. the People declare, on the record, that the death penalty is not being sought herein; 3. the People have not filed the CPL 250.40 notice by November 5, 1999 and have not been granted any extensions of time to do so. Based upon the above, it is ordered that defendant's motion to plead to entire indictment No. 115-99 is denied in its entirety. [*] The United States Supreme Court recently denied certiorari to the Kings County District Attorney to review said decision. (Hynes v Tomei, 527 US 1015 [1999].)