Farrell v. Czarnetzky

PER CURIAM: After the argument of the instant consolidated appeals, the Supreme Court heard and decided Patterson v. New York, 432 U.S. 197 (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. Metz-ner, District Judge, and (2) granting Reid-out’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 (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).