NY Penal Law Article 125 – Homicide Related Offenses: Part III – “Murder” Specific Offenses

August 4, 2014

Homicide in New York State is generally defined as conduct which causes the death of a person or of an unborn child with which the female has been pregnant for more than 24 weeks (6 months).  See NY Penal Law Sec. 125.00. Because there are a number of ways that such an act can be committed, the term “homicide” encompasses a vast array of more specific offenses and mental states, i.e., intent.

These statutes can be complex and difficult to understand or differentiate from each other.  An experienced criminal defense attorney will be able to determine whether the charge is the appropriate one and whether the charging instrument is sufficient.  In cases of this magnitude, the significance of that step cannot be overstated.

Because the statutes of Penal Law Article 125 are complex, I have attempted, where appropriate, to paraphrase the statute to make it easier to digest.  But because of that, none of the statutes quoted or referenced in this article should be considered complete nor should they be relied upon as legal advice.  As always, and even more importantly when it comes to charges of homicide, murder or manslaughter, it is imperative that you discuss your case with a qualified criminal defense attorney immediately.

Due to the overwhelming information that would need to be included in an article that covered all of the homicide offenses in one, I have separated the offenses into related groups for ease of reference.

Click on the term for the corresponding articles relating to Homicide or Manslaughter.

Penal Law Sec. 125.25.  Murder in the Second Degree.

            A person is guilty of murder in the second degree when:

  1. With intent to cause the death of another person, he causes the death of such person or of a third person.
  2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person;
  3. During the commission, attempted commission or immediate flight from of a robbery, burglary, kidnapping, arson, 1st degree rape, 1st degree criminal sexual act, 1st degree sexual abuse, aggravates sexual abuse, 1stdegree escape, or 2nd degree escape, he causes the death of a person other than one of the participants (felony murder);
  4. Under circumstances evincing a depraved indifference to human life, and being at least 18 years old, he recklessly engages in conduct which creates a grave risk of serious physical injury or death to a person less than 11 years old and thereby causes that person’s death; or
  5. Being at least 18 years old, he intentionally causes the death of a person less than 14 years old during the commission of 1st, 2nd or 3rd degree rape, 1st, 2nd or 3rd degree criminal sexual act, 1st, 2nd or 3rd degree sexual abuse, 1st, 2nd, 3rdor 4th degree aggravated sexual abuse, or 1st, 2nd or 3rd degree incest.

Murder in the second degree is a class A-I felony, i.e., up to Life in prison.

Penal Law Sec. 125.26.  Aggravated Murder.

A person is guilty of aggravated murder when he or she is at least 18 years old and intentionally kills:

  1. A police officer engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer;
  2. A peace officer engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or
  3. An employee of a state correctional institution or local correctional facility engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such an employee;

OR, with intent to kill another person, kills a third person and that person is defined in subsections 1, 2, or 3 above;

OR, being at least 18 years old, kills a person less than 14 years old by torture.

      Aggravated murder is a class A-I felony, i.e., up to Life in prison.

Penal Law Sec. 125.27.  Murder in the First Degree.

             A person is guilty of murder in the first degree when the defendant is older than 18 years old and:

  1. He intentionally kills a police officer engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer;
  2. He intentionally kills a peace officer engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth;
  3. He intentionally kills an employee of a state correctional institution or local correctional facility engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such an employee;
  4. He intentionally kills someone while confined a state correctional facility serving a life sentence;
  5. He intentionally kills a witness to prevent them from testifying, or as retribution for prior testimony, or an immediate family member of a witness;
  6. He intentionally kills pursuant to a murder for hire/contract;
  7. The victim was killed during the commission, attempt to commit or immediate flight from enumerated felonies (felony murder);
  8. He causes the death of two or more persons who are not participants in the crime;
  9. Prior to the current murder, he had previously been convicted of murder;
  10. The killing is done by torture;
  11. He had previously killed two or more people in prior separate crimes within 24 months in a similar fashion;
  12. The victim was a judge and was killed because they were a judge; or
  13. The killing was a result of terrorism.

Murder in the first degree is a class A-I felony, i.e., up to Life in prison

Affirmative Defenses

The murder statutes provide for affirmative defenses, which permit the opportunity for a conviction of a lesser offense thereby resulting in a reduced sentence.  An affirmative defense is one of the very few instances in criminal law wherein the burden of proof shifts to the defendant, i.e., the defendant bears the burden of proving the existence of the facts constituting the defense.  However, in most if not all affirmative defenses, the defendant must concede that his actions in some way resulted in the death of another person, so such a strategy is not to be entered into lightly.

It is a gross understatement to say that any homicide, manslaughter or murder charge is serious.  A conviction of any one of these offenses can ruin the lives of everyone it touches, the defendants’ as well as that of their family member’s and friend’s.  If you are someone you love is facing such a charge, call the criminal defense firm of Catalano& Carpenter LLP today at (845) 454-1919 to schedule a free consultation.