AOJ 110 Grossmont College Law People of the State of New York v Cahill Case Study

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AOJ 110

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  • Summarize the facts of the case.
  • Include in your response the pretrial process.
  • Take notes the defendants' behavior while on pretrial.
  • Take notes on the trial process
  • Take notes on the final outcome of the case (Sentencing)

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People v. Cahill 2 N.Y.3d 14 (2003) 809 N.E.2d 561 777 N.Y.S.2d 332 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES F. CAHILL, III, Appellant. Court of Appeals of the State of New York. Argued September 22, 2003. Decided November 25, 2003. [18] Kevin M. Doyle, Capital Defender, New York City (Ann M. Parrent, Claudia Van Wyk and Sean J. Bolser of counsel), for appellant. [19] [20] [21] [22] [23] [24] [25] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell, Victoria M. White, Gary T. Kelder, Domenic F. Trunfio, [26] Christopher J. Bednarski, Molly A. Cappuccilli, Matthew J. Doran, David A. Rothschild and Bridget A. Scholl of counsel), for respondent. [27] [28] [29] [30] [31] [32] Eliot Spitzer, Attorney General, New York City (Peter B. Pope, Michael S. Belohlavek, Robin A. Forshaw and Luke Martland of counsel), in his statutory capacity under Executive Law § 71. [33] Christopher Dunn, New York City, Arthur N. Eisenberg and Donna Lieberman for New York Civil Liberties Union, amicus [34] curiae. Stewart F. Hancock, Jr., Syracuse, Alan J. Pierce and Lily K. Lok for Thomas Aloi and others, amici curiae. Chief Judge Kaye and Judge Ciparick concur with Judge Rosenblatt; Judge G.B. Smith concurs in result in a separate opinion in which Judge Ciparick concurs insomuch thereof as addresses deadlock jury instructions; Judge Graffeo concurs in part and dissents in part in another opinion in which Judge Read concurs; Judge Read concurs in part and dissents in part in an opinion in which Judge Graffeo concurs. [35] OPINION OF THE COURT ROSENBLATT, J. Under New York's capital punishment scheme, a person who commits an intentional (second degree) murder is eligible for a death sentence if any one of 13 aggravating factors is proved (seePenal Law § 125.27 [1] [a] [i]-[xiii]), and if within 120 days after arraignment the prosecution files a notice of intention to seek the death penalty (CPL 250.40 [2]). In the case before us, a jury found defendant guilty of two counts of first degree murder, based on two aggravating factors (witness elimination murder, Penal Law § 125.27 [1] [a] [v], and intentional murder in the course of and in furtherance of second degree burglary, Penal Law § 125.27 [1] [a] [vii]). At the penalty phase of the trial, the jury determined that defendant should be sentenced to death on both counts. For reasons that follow, we conclude that neither of the aggravating factors was proved. This being so, the penalty phase was conducted without legal foundation and the resulting death sentences must be vacated. Defendant's guilt for intentional murder, however, was proved beyond a reasonable doubt, and we therefore reduce defendant's conviction to murder in the second degree and remit the case to the trial court for resentencing. In early April 1998, defendant and his wife, Jill, signed a separation agreement but continued to live under the same roof at their home in Spafford, Onondaga County. On April 21, during a predawn heated argument, defendant struck Jill repeatedly on the head with a baseball bat. The couple's two young children were nearby and Jill called out, urging them to call the police because their father was trying to kill her. After the attack, defendant phoned his parents for help. They soon arrived at the Cahill residence, along with defendant's brother and a family friend who was a physician. Having been summoned to the scene, the police found Jill lying on the kitchen floor. She was covered in blood, writhing in pain and moaning incoherently. Her left temple was indented from the injury. Defendant and victim were taken to different hospitals. After hospital personnel treated defendant for minor injuries, the police [36] brought him to the station house for questioning. At first, he stated that Jill had instigated the argument and attacked him with a knife, causing some cuts and scratches on his body. He claimed he struck her in self-defense. Defendant later admitted that he struck Jill with the bat when she was unarmed and that he cut himself, making it look like selfdefense. Defendant added that after the assault, he taped a length of garden hose to the tailpipe of his car in order to poison himself with carbon monoxide, but decided against suicide when he saw a rosary in his vehicle. In June 1998, a grand jury indicted defendant for assault in the first degree and criminal possession of a weapon in the fourth degree. In the months that followed, he and his attorney prepared for trial. In the meantime, there were custody proceedings in Onondaga Family Court, which placed the children with their maternal grandparents and aunt. In addition, Family Court and Onondaga County Court issued orders of protection prohibiting defendant from seeing his children or entering University Hospital, where Jill was confined. By one medical estimate, Jill had been hit at least four times in the skull. At the hospital, she underwent emergency surgery to remove a blood clot from her brain. In the ensuing weeks, Jill suffered from brain swelling and a number of life-threatening infections. She began to improve and eventually moved from intensive care to the coma rehabilitation unit, and later to the general rehabilitation unit. Her recovery was slow and by no means complete. By October of 1998—six months after the assault —Jill was able to recall the names of her children and had regained some ability to speak, but could use only short, simple words. On October 27, 1998, after the hospital was closed to visitors, defendant entered the premises, in disguise. According to several members of the staff, defendant wore a wig and glasses, posing as a maintenance worker, complete with a mop and falsified name tag.[1] Shortly after 10:00 P.M., a nurse detected a strong odor in the room and saw Jill having trouble breathing. The nurse also observed a waxy-looking substance on Jill's chest [37] and that Jill's hospital gown caused a burning sensation when touched. Despite efforts to revive her, Jill died the next morning. She had been poisoned. An autopsy revealed that potassium cyanide was administered through her mouth or feeding tube. Police promptly arrested defendant for Jill's murder. Employing search warrants, they recovered data from the hard drive of the Cahill home computer revealing Internet searches that used the words "cyanide" and "ordering potassium cyanide." The "slack"[2] also yielded letters composed on the computer. The letters were purportedly sent from an East Syracuse company called General Super Plating to Bryant Laboratories, placing orders for potassium cyanide. In the area near the shed on the Cahill property police found a half-burned wig and a bottle containing potassium cyanide. Further investigation produced eyewitnesses who saw defendant intercept the delivery of cyanide in the vicinity of General Super Plating in July of 1998. On November 19, 1998, while the assault charges were pending, a grand jury indicted defendant on two counts of first degree murder and related offenses. One murder count charged defendant with having murdered Jill to prevent her from testifying against him at his trial for the April 1998 assault (Penal Law § 125.27 [1] [a] [v]), the other with intentionally murdering Jill in the course of and in furtherance of a burglary (Penal Law § 125.27 [1] [a] [vii]). The grand jury also indicted defendant on two counts of murder in the second degree, burglary in the second degree, aggravated criminal contempt and criminal possession of a weapon in the fourth degree. On December 30, 1998, the District Attorney filed a CPL 250.40 (2) notice of intention to seek the death penalty. In addition, the prosecution moved to consolidate the murder and assault indictments.[3] The trial court granted the motion in January 1999. Pursuant to CPL 400.27, the court conducted the jury trial in two phases.[4] In the first phase, the jury found defendant guilty of both counts of first degree murder, first degree assault (based [38] on the April 1998 beating) and related charges. The penalty phase followed, in which the jury returned with verdicts of death under both first degree murder counts. Pursuant to article VI, § 3 (b) of the State Constitution and CPL 450.70 (1), defendant has appealed directly to our Court. Although we address several of the 38 points briefed by defendant, our determination turns on three primary issues: jury selection, weight of the evidence supporting first degree (witness elimination) murder under Penal Law § 125.27 (1) (a) (v) and legal sufficiency of first degree murder (based on burglary) under Penal Law § 125.27 (1) (a) (vii). We conclude that the trial court erred in its rulings concerning potential jurors Nos. 23 and 855; that the first degree murder conviction based on witness elimination was against the weight of the evidence; and that the first degree murder conviction premised on burglary was legally insufficient to support a conviction. I. Pretrial Issues A. Pretrial Publicity Defendant argues that extensive, prejudicial pretrial publicity denied him a fair trial before an impartial jury. He contends that the adverse publicity warranted a change of venue, either before or during voir dire. We disagree. CPL 230.20 authorizes a change of venue when either party shows "reasonable cause to believe that a fair and impartial trial cannot be had in such county" (CPL 230.20 [2]). A motion for change of venue must be made before the Appellate Division department embracing the county in which the superior court is located. In the exercise of its discretion, the Appellate Division can order removal to the superior court of another county (CPL 230.20 [2] [a]) or direct the commissioner of jurors (in consultation with the administrative judge of the judicial district in which the county is located) to expand the jury pool to include people from jury lists of geographically contiguous counties within the judicial district (CPL 230.20 [2] [b]). It is imperative that prospective jurors be open-minded and unbiased, but they need not "be totally ignorant of the facts and issues involved" (Irvin v Dowd, 366 US 717, 722 [1961]). As recognized in Irvin, "[i]t is sufficient if the juror can lay aside [39] his impression or opinion and render a verdict based on the evidence presented in court" (id. at 723). The Supreme Court has identified a number of conditions that may justify a change of venue, such as televised confessions (see Rideau v Louisiana, 373 US 723 [1963]), a media-generated "carnival atmosphere" in the courtroom (Sheppard v Maxwell, 384 US 333, 358 [1966]), or a close temporal proximity between the media coverage and the jury selection (see Patton v Yount, 467 US 1025, 1032 [1984]). Disinclined to presume prejudice, our courts have rarely granted motions for change of venue before jury selection.[5] To succeed, a party must show not only extensive publicity and comment but also that media coverage has aroused "a deep and abiding resentment" in the county (People v Boudin, 90 AD2d 253, 259 [2d Dept 1982]; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 230.20, at 311). Here, the Appellate Division denied defendant's pre-voir dire motion for a change of venue, stating that if during voir dire a fair and impartial jury could not be drawn, the defense could renew the motion (261 AD2d 972 [4th Dept 1999]). Defendant did so after jury selection, arguing that the voir dire revealed a level of prejudice that infected the jury pool. The Appellate Division denied that motion as well. This case did not warrant a pre-voir dire change in venue. Onondaga County was not "deluged by a tidal wave of prejudicial publicity to such an extent that even an attempt to select an unbiased jury would be fruitless" (Boss, 261 AD2d at 4). Thus, the Appellate Division properly denied defendant's first CPL 230.20 motion. Following the denial of a change of venue motion on the ground of prematurity, the proper procedure is to undertake voir dire and attempt to select an impartial jury (People v Parker, 60 NY2d 714, 715 [1983]; People v Smith, 63 NY2d 41, 69 [1984]). The trial court did so here, and for the reasons that follow we conclude that the Appellate Division did not abuse its discretion in denying defendant's post-voir dire motion. This Court has several times addressed the problem of pretrial publicity in first degree murder cases. In People v DiPiazza (24 NY2d 342, 347 [1969]), we upheld the denial of a change of venue, finding it significant that defendant did not exhaust his [40] peremptory challenges, but noting that "the court's discretion will not be disturbed unless the newspaper articles are of such a sensational character as to excite local popular passion and prejudice so that the defendant will not be able to have the fair trial to which he is entitled." In that case, however, the Herkimer County media coverage was "surprisingly objective" (id.). Moreover, less than 25% of the prospective jurors expressed an opinion as to DiPiazza's guilt (id. at 346). In People v Culhane (33 NY2d 90, 110 [1973]), an Ulster County case in which three prisoners killed a deputy sheriff, we observed that the highly localized and incessant nature of the prejudicial publicity surrounding the case "probably" warranted a change of venue. Nevertheless, we reversed the defendant's conviction due to the bias of prospective jurors who did not make expurgatory oaths required under former Code of Criminal Procedure § 376 (2). In People v Lynch (23 NY2d 262, 272 [1968]), this Court affirmed the denial of defendant's motion for change of venue where voir dire resulted in selection of a jury free of media influence. This case generated a good deal of pretrial publicity in Onondaga County. According to the juror questionnaires, 86% of the prospective jurors had heard of the case from media accounts (including 8 of the 12 jurors). The test for removal, however, is not based on the number of prospective jurors who heard of the case. If that were the test, juries in highly publicized cases would necessarily consist only of the most reclusive and uninformed segment of the population. What counts is not knowledge of the accusation, but whether that knowledge has shaped the jurors' attitudes and predispositions. Merely having heard of the case is not enough, if the jurors come into the courtroom knowing no more than they learn when they are told of the charge in open court. The question is whether media or other accounts have been so inflammatory as to thwart the selection of a fair-minded jury. A review of the media coverage in this case shows that the publicity was not so sensational or prejudicial as to taint the jury pool. Most of the media coverage tended to be objective, including "police blotter" reports and news reports on the court proceedings. The publicity was similar to that in DiPiazza, in which we upheld the denial of a change in venue: "The victim's funeral and the members of her family were sympathetically portrayed and the defendant's action was described as having caused a widespread reaction and aroused deep feeling. But [41] there was very little that could be said to be affirmatively hostile to him" (id. at 347). Here, although 52% of the jurors came to court with an opinion as to defendant's guilt or innocence, the voir dire successfully culled out jurors who may have been biased by pretrial publicity. Thus, we hold that, in denying defendant's motions, the Appellate Division acted within its discretion. B. Search Warrant Police found a container of potassium cyanide in a hollow space of a cinder block on the exterior base of the shed on defendant's property. Defendant argues that the warrant referred only to his house and that the police conducted an impermissible search of the shed. Contrary to defendant's contention, the search warrant authorized a search of the shed. When conducting searches, search warrants are preferred, because they contemplate an orderly procedure and authorization by a neutral and detached magistrate (see United States v Jeffers,342 US 48 [1951]; Johnson v United States, 333 US 10 [1948]). For that reason, reviewing courts should accord the process proper deference and not defeat search warrants (or discourage law enforcement officials from seeking them) by imposing overly technical requirements or interpreting them incompatibly with common sense (see United States v Ventresca, 380 US 102, 108 [1965]). Thus, a court may review the supporting documents to clarify any ambiguity (see People v De Lago, 16 NY2d 289, 290-291 [1965]). Also, and especially relevant here, material previously submitted to a judge may be incorporated by reference in a subsequent warrant application "so long as the earlier information was given under oath, is either available to the Magistrate or sufficiently fresh in the Magistrate's memory so that he or she can accurately assess it and it is available in a form which can be reviewed at a later date" (People v Tambe, 71 NY2d 492, 502 [1988]). The Fourth Amendment requires a search warrant to describe particularly the place to be searched (US Const Fourth Amend; see NY Const, art I, § 12), so that the right of privacy is protected from arbitrary police intrusion. To meet the particularity requirement, the warrant must be specific enough to leave no discretion to the police (see People v Brown, 96 NY2d 80, 84 [2001]). Here, the particularity requirement has been met. The warrant that led to the seizure explicitly notes that it is an addendum [42] to a warrant issued three days before, which included searches for "toxic/caustic materials" in defendant's home or "within any unattached garages or storage sheds" (emphasis ours). Thus, the warrant incorporated previously submitted materials known to the issuing Judge, who, over four consecutive days, signed five search warrants related to this case (see Tambe, 71 NY2d at 502). The search was valid and the court properly denied suppression of the evidence. C. Defendant's Right to a Bench Trial Defendant argues that he should have had the option of a bench trial to alleviate the alleged prejudicial effects of pretrial publicity and consolidation of the murder and assault indictments. His argument fails. As noted, we find no prejudicial impact from the pretrial publicity, nor did any result from consolidation of the indictments.[6] Moreover, "[t]he history of our jurisprudence reveals that the fundamental right is the right to a trial by jury" (People ex rel. Rohrlich v Follette, 20 NY2d 297, 301 [1967] [emphasis in original]). This tenet is reflected in article I, § 2 of the New York State Constitution, which prohibits waivers of a jury trial in capital cases. Our State Constitution's ban on jury waivers in capital cases is long-standing and purposeful. Before 1938, no defendant in a criminal case was allowed to waive trial by jury (see People v Cosmo, 205 NY 91, 96 [1912]; Cancemi v People, 18 NY 128, 137 [1858]). The 1938 Constitution—our present Constitution—allows bench trials in criminal cases, but pointedly preserves the prohibition in capital cases (People v Page, 88 NY2d 1, 6 [1996]). The Bill of Rights Subcommittee to that Constitutional Convention drafted the provision, explaining that "its determination to withhold the jury waiver right from capital defendants derived from the notion `that the Constitution will still not permit this choice to a defendant in a capital case, and regards such a prohibition against waiver as a measure for the protection of the defendant.'"[7] Consistent with constitutional commands, CPL 320.10 excludes capital cases from the provisions that govern jury trial [43] waivers. Moreover, there is no federal constitutional right to a bench trial (see Singer v United States, 380 US 24, 36 [1965]). Thus, defendant was not entitled to one (see also People v McIntosh, 173 Misc 2d 727 [Dutchess County Ct 1997]).[8] D. Consolidation of the Indictments Defendant contends that the court should not have granted the prosecution's motion to consolidate the assault and murder indictments for trial. He further asserts that after consolidation he had the right to plead guilty to the assault charges over the prosecution's objection and proceed to trial on the murder charges only. The trial court did not abuse its discretion in allowing consolidation (see People v Lane, 56 NY2d 1 [1982]). CPL 200.20 (2) (b) permits joinder of offenses based on different criminal transactions when "such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first." The April 1998 assault and October 1998 murder of Jill Cahill fit this provision because the prosecution based one of its murder charges on Jill's potential testimony in the assault trial, making proof of the assault relevant to the murder case. Thus, the offenses were joinable and consolidation was proper (see People v Bongarzone, 69 NY2d 892 [1987]). We also reject defendant's argument that he should have been allowed to plead guilty to only the assault portion of the consolidated indictment. From the time defendant was indicted for assault until the court consolidated the assault and murder indictments—a period of approximately seven months—defendant could have pleaded guilty to the assault indictment. Once the court consolidated the indictments, defendant could plead guilty to the entire indictment (if the prosecution determined [44] that it would no longer seek the death penalty)[9] but not to only a portion of it (see CPL 220.10 [2], [4]).[10] Unless the People and the court consented, such a plea was untenable. II. Jury Selection Defendant raises a number of arguments concerning jury selection, and in particular assails the trial court's rulings concerning 16 prospective jurors. We will address only the rulings as to prospective jurors Nos. 23 and 855.[11] A. Defendant's For-Cause Challenge of Prospective Juror No. 23 In capital punishment jurisprudence, jurors must be death qualified and life qualified if they are to serve. Broadly put, a juror who is "death qualified" may have misgivings about the death penalty but does not rule out voting for it. Conversely, a juror who is "life qualified" may generally favor the death penalty but does not rule out voting against it. Defendant claims that prospective juror No. 23 was overly prone toward the death penalty and thus not properly life qualified. He contends that the trial court erroneously denied his challenge for cause under CPL 270.20 (1) (f), requiring the defense to waste a peremptory challenge. Having exhausted his peremptory challenges before the completion of jury selection, defendant seeks redress under CPL 270.20 (2). We agree that the trial court erred in not dismissing prospective juror No. 23 for cause. In his questionnaire, prospective juror No. 23 said he was "not a total 100% supporter" of capital punishment. He added, however, that a sentence of life without parole could mean that "in some cases the defendant got off easy," and he indicated that he could not consider a sentence of life without parole [45] because he thought defendant should die, just as the victim did. When questioned individually, however, he made a number of statements attesting to his ability to deliberate fairly. As the prosecution points out, the juror said he was "willing to go along and listen now to hear, you know, what prompted such actions, what happened, what really happened, and see what the story really is." This seemed reassuring for the moment, but a later exchange was particularly revealing and cast doubt on his previous assertions. When examined by the defense attorney concerning his ability to consider both death and life without parole, juror No. 23 related an incident in his own marriage: "I had a terrible argument with my wife once, real bad. Almost a knock down drag out. I raised my [h]and to her and I didn't hit her but I grabbed her and threw her on the couch. You know, I felt sick for doing that because that's my generation. My generation doesn't do that. You know, I have never—we have had arguments since, we have had discussions, but, you know, when it comes to that point, it's time to walk. It's time to go out the door, get some air, get the hell away. So it's possible that that could come to mind. As much as I'm sitting here and I'm trying to promise everybody that I'd be fair, I'm still human, I'm still a man, that could come to mind. That's being honest. . . . "I'd love to be able to say I could just blank myself out but if the gentleman, if we find the gentleman guilty of First Degree Murder and now comes the penalty phase, as much as I would say, you know, I have to just deal with this, that situation will come up because it still haunts me. It still bothers me." Following up on the point, defense counsel asked him if "that life experience of yours . . . is causing you some concern as to whether you'd be able to consider both penalties fairly?" and whether "[t]hat would cause you some problems with being able to consider life without parole as the appropriate penalty other than death?" The juror answered yes to both questions. Defendant immediately challenged him for cause, contending that the juror's life experience would amount to "an inability at the sentencing phase, the penalty phase, to be able to engage in the statutory weighing process that New York law mandates a juror to engage in." The trial court denied the challenge. The test for life and death qualification is prescribed in CPL 270.20 (1) (f). Pursuant to that statute, either party in a capital [46] case may challenge a prospective juror for cause if the juror "entertains such conscientious opinions either against or in favor of such punishment as to precludesuch juror from rendering an impartial verdict or from properly exercising the discretion conferred upon such juror by law in the determination of a sentence pursuant to section 400.27" (emphasis supplied). In People v Harris (98 NY2d 452, 484 [2002]), we interpreted "preclude" to embody the Wainwright v Witt (469 US 412 [1985]) "prevent or substantially impair" standard, and explained that under this criterion jurors must be dismissed if they "express an inability to set aside their personal views on the death penalty in deference to the court's instructions" (Harris, 98 NY2d at 484). The proponent of the challenge must demonstrate through questioning the juror's inability to fulfill his or her oath (see Morgan v Illinois, 504 US 719, 733 [1992]). Prospective juror No. 23 divulged that an incident in his life involving domestic violence—an issue highly relevant to this case—would strongly color, if not dictate, his views as to the penalty. The People urge that the juror's earlier statements regarding his ability to serve impartially established his suitability. The juror's expressions of open-mindedness, however, were undermined by his later responses. Once he acknowledged that his views on domestic violence would impede his ability to consider one of the two sentencing options, his earlier expressions of fitness rang hollow. Rather than grant defendant's challenge, or at least question the juror as to whether these deeply held views would preclude him from serving impartially in a penalty phase, the court simply allowed the juror to remain on the panel.[12] This was error. B. The People's For-Cause Challenge of Prospective Juror No. 855 The People successfully challenged prospective juror No. 855 based on her attitude toward the death penalty. We agree with defendant that this juror was death qualified (see Wainwright v Witt, 469 US 412 [1985]) and that the court improperly granted the People's challenge. In her questionnaire, prospective juror No. 855 equivocated about her feelings toward capital punishment. In some responses [47] she indicated she could not consider death as a sentencing option, but in others said she would consider both death and life without parole. When questioned individually, she said that "[i]n most instances" the death penalty was wrong, but allowed that she could accept it in a few cases. The prosecutor questioned her further on this point, pressing her to give examples of cases in which she thought the death penalty appropriate. She agreed with the prosecutor when he suggested that a case involving multiple victims might justify capital punishment, and said she would consider the death penalty in cases that involved "[s]omething very, very very wrong," or were "bizarre" or "brutal[]." She also referred to an instance in which she thought the death penalty warranted, identifying "the case of a mother and daughters that were out in the west." She declined to give further examples, explaining that she would base her decision on "prayerful consideration and hearing about the situation." Furthermore, prospective juror No. 855 answered yes when at different times the prosecutor, defense counsel and the court asked her if she could consider both death and life without parole as possible punishments. Her voir dire concluded when the court asked her if she considered death a possible penalty in this case, and she replied that she "[saw] it as a possible one, sir, yes." The prosecutor challenged her for cause, arguing that "she refuses to answer a dispositive question," and the trial court granted the challenge, stating "I don't think she is in a right mind to be a juror in this case. She is out." On this record, juror No. 855 should not have been dismissed for cause. CPL 270.20 (1) (f) and Harris (98 NY2d at 484) require dismissal of a juror whose views "prevent or substantially impair" the juror from rendering an impartial verdict or properly exercising sentencing discretion. Drawing on United States Supreme Court precedent dealing with death and life qualification of capital jurors,[13] we explained that "[w]here jurors express conscientious views concerning the death penalty yet still make clear that they are able to follow their oaths to act impartially, they cannot be excluded for cause from participating on the jury" (Harris, 98 NY2d at 484). Prospective juror No. 855 may have expressed reservations about the death penalty but, after doing so, made it clear that she could follow [48] her oath, act impartially and consider both the death penalty and life without parole. Moreover, the prosecutor made no correlation between this juror's views on capital punishment and his argument that she refused to answer a question (see id. at 486-487). In advancing his challenge for cause, the prosecutor maintained that this juror's views on the death penalty were "unknown." The contrast between prospective jurors Nos. 855 and 23 illustrates the trial court's uneven standard in addressing the challenges based on death or life qualification. Juror No. 23 candidly stated that his experience with domestic violence "still haunts [him]" and that he could not "blank his mind" when considering possible penalties. Though the juror "express[ed] an inability to set aside [his] personal views" (id. at 484), the court denied defendant's challenge. On the other hand, juror No. 855 revealed no inability to consider both punishments. She gave examples of cases where she might consider the death penalty, said she would make her decision on penalty after hearing the case, and repeatedly told the parties she would consider both death and life without parole. Nonetheless, the court granted the People's challenge.[14] We caution that the "prevent or substantially impair" standard applies equally to both death and life qualification (see id. at 484; Morgan, 504 US at 733-734) and that trial courts should employ the test meticulously. The prosecutor based his challenge for cause, at least in part, on his assertion that the juror's views on the death penalty were "unknown." The court dismissed the juror, stating only that "I don't think she is in a right mind." We caution that a trial court should make every effort to couch its ruling with reference to an articulated standard and, most importantly, create [49] a record that permits appellate review. Here, the recorded exchanges among the juror, the court and the attorneys did not justify dismissal.[15] Lastly, and most emphatically, we underscore that the chances of reversal are too great to make risky voir dire rulings that could occasion retrial, with all the needless effort and expense that goes with it (see e.g. People v Heard, 31 Cal 4th 946, 966-967, 75 P3d 53, 66 [2003]). We have issued this caution in noncapital criminal cases (People v Nicholas, 98 NY2d 749 [2002]), and it is all the more compelling in capital cases. C. Remedy for Penalty-Related Juror Selection Errors Defendant urges that pursuant to CPL 270.20 (2) the trial court's errors pertaining to prospective jurors Nos. 23 and 855 compel us to overturn not only the death sentence but the guilt phase verdict as well. We disagree. The errors as to both jurors related to their ability to serve impartially only during the penalty phase. Errors of that type do not infect the guilt phase and by no means warrant a reversal of the entire trial. CPL 270.20 (2) states that "[a]n erroneous ruling by the court allowing a challenge for cause by the people does not constitute reversible error unless the people have exhausted their peremptory challenges at the time or exhaust them before the selection of the jury." Subdivision (2) goes on to state that the denial of a defendant's for-cause challenge is not reversible error unless the defendant has exhausted all peremptory challenges or uses a peremptory against the disputed juror and later exhausts all such challenges. In laying out these requirements, the statute contemplates remedial action by the appellate court when the trial court improperly grants or denies a challenge for cause. Indeed, the loss of a peremptory challenge constitutes harm enough to trigger the statutory remedy contemplated in CPL 270.20 (2) (see e.g. People v Bludson, 97 NY2d 644 [2001]; People v Arnold, 96 NY2d 358 [2001]). An erroneous denial of a defendant's challenge for cause is not rendered "harmless" merely because the defense later excuses the juror peremptorily (see People v Culhane, 33 NY2d 90, 97 [1973]; People v Chambers, 97 NY2d 417 [2002]). To the contrary, the defendant's loss of the peremptory challenge constitutes the harm. Where a [50] defendant's peremptory challenges are thereafter exhausted, erroneous denial of the prior challenge for cause constitutes reversible error warranting corrective action (CPL 270.20 [2]). The precise corrective action, however, depends on the type of trial involved. Capital trials are divided into guilt and penalty phases (see CPL 400.27). In the traditional, single-phase criminal trial, the jury decides only the defendant's guilt and not the sentence. Thus, when a trial court rules in violation of CPL 270.20 (1), a new trial is the only possible remedy. The unique, bifurcated structure of a capital trial, however, not only affords the defendant broader protections but also provides alternative remedies for improper rulings. In reviewing the evolution of our statutory law, a number of historical markers support our conclusion that a guilt phase retrial is not required if a juror's bias goes only to the sentencing phase. Bifurcated capital trials began in New York in 1963, with the amendment of sections 1045 and 1045a of the former Penal Law (see L 1963, ch 994, §§ 1, 2).[16] The bill was proposed because, at the time, New York State was the only American jurisdiction that had retained the mandatory death penalty for murder. Proponents concluded that by providing the jury with a life imprisonment option, the bill would achieve the "worthy objective" of terminating New York's solitary adherence to the mandatory death penalty for murder (see Mem of Commn on Revision of Penal Law and Crim Code in Support of L 1963, ch 994, 1963 McKinney's Session Laws of NY, at 2019). It would eliminate "the illogical and wasteful situation arising when a jury determination of guilt is negated by failure to agree upon the penalty or recommendation aspect. Through severance of the two issues and prescription of separate verdicts for each, the primary verdict of guilty stands final and recorded regardless of any further proceedings or determinations with respect to sentence" (id. at 2020 [emphasis added]). [51] Effective 1967, the Legislature revised the Penal Law to make murder a degreeless crime (L 1965, ch 1030, as amended by L 1967, ch 791, § 9), treating intentional killing, depraved indifference murder and felony murder as the same level of offense. Under then-existing Penal Law § 125.30, a defendant convicted of intentional or felony murder[17] was subjected to a second proceeding to determine whether the sentence should be death or life imprisonment.[18] At the time of these enactments, the former Code of Criminal Procedure had been in effect for over a century, well before the United States Supreme Court decided a number of cases that shaped our statutory development. A Historical Note following the text of section 374 of the Code (Cons Laws of NY Ann, Book 66, at 824 [Edward Thompson Co 1958]) states that "[a] major consideration in enacting sections 374-378 [on challenges for cause] was to define that bias which should be the grounds for eliminating a juror, confining it to those degrees of prejudice which would `endanger the substantial rights of the prisoner'" (citing Report of Commissioners on Practice and Pleadings, at 196, submitted Dec. 31, 1849). A prospective juror could be challenged for "actual bias" when the juror expressed a state of mind such that the juror could not "try the issue impartially and without prejudice to the substantial rights of the party challenging" (Code Crim Pro § 376 [2]). Additionally, as the Court said in People v Carolin (115 NY 658 [1889]), a challenge for "implied bias" could also be made in a capital case when a prospective juror expressed "such conscientious opinions as could preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror" (Code Crim Pro § 377 [8]). In 1968, the United States Supreme Court decided Witherspoon v Illinois (391 US 510 [1968])—a case that influenced our [52] statutory scheme relating to juror challenges. Witherspoon held that in a capital case no state could exclude jurors merely because they expressed general objections to the death penalty. The Court stated that, "[i]n its quest for a jury capable of imposing the death penalty, [Illinois] produced a jury uncommonly willing to condemn a man to die" (id. at 520-521). Soon after, the Legislature added Criminal Procedure Law § 270.20 (1) (f) (L 1970, ch 996, § 1), permitting challenges for cause on the ground that: "[t]here is a possibility that the crime charged may be punishable by death and the prospective juror entertains such conscientious opinions either against or in favor of the death penalty as to preclude him from rendering an impartial verdict or from properly exercising the discretion conferred upon him by law in the setting of the penalty upon a proceeding conducted pursuant to section 125.35 of the penal law" (id.).[19] It also modernized Code of Criminal Procedure § 376 (2), replacing it with CPL 270.20 (1) (b) (L 1970, ch 996, § 1). At the same time, the Legislature enacted new CPL 270.20 (2), setting out the circumstances in which an erroneous ruling by the trial court on a challenge for cause would amount to reversible error. In People v Culhane (33 NY2d 90 [1973]),[20] the Court focused on prospective jurors who believed defendants guilty primarily based on media accounts, observing that: "Although the veniremen did not sit on the jury, because the defendants exercised peremptory challenges, this is of no consequence. It is well settled that an erroneous ruling by the court, denying a challenge for cause, constitutes reversible error when the defendant peremptorily challenges the prospective juror and his peremptory challenges are exhausted before the jury selection process is [53] complete (People v. Casey, 96 N. Y. 115, 123; People v. Flaherty, 162 N. Y. 532, 537, 538). This rule of long standing, derived from the common law, has recently been codified in CPL 270.20 (subd. 2)." It is important to recognize that this common-law rule embodied within CPL 270.20 (2) developed independently, and did not envision challenges for cause pertaining to penalty phase jurors. Indeed, until 1963, there was no such thing as a two-stage capital trial. Rather, CPL 270.20 (2) was concerned with actual bias that could affect a jury's finding of guilt. By contrast, it is evident—and critical to our determination—that in enacting CPL 270.20 (1) (f), the Legislature was responding only to United States Supreme Court constitutional jurisprudence relating to sentencing phase bias. This federal-state dialogue concerning the death penalty continued after the passage of CPL 270.20. In People v Fitzpatrick (32 NY2d 499, 509-513 [1973]), relying on the Supreme Court's recent pronouncement in Furman v Georgia (408 US 238 [1972]), we held Penal Law § 125.35 (5) unconstitutional as violative of the Cruel and Unusual Punishment Clause because it permitted the jury to impose the penalty with unfettered discretion (see also Culhane, 33 NY2d at 95). In response, the Legislature amended CPL 270.20 (1) (f) to delete the language pertaining to the juror's exercise of discretion in setting a penalty. A subdivision (1) (f) for-cause challenge was thus limited to whether the juror's conscientious opinions for or against the death penalty would preclude the juror from rendering an impartial verdict (L 1974, ch 367, § 14).[21] In an about-face from the course it took in 1963, and in response to Furman, the Legislature added Penal Law § 60.06, requiring mandatory death sentences for defendants convicted of murder in the first degree (L 1974, ch 367, § 2).[22] That brings us to the present statute. In 1995, the Legislature amended CPL 270.20 (1) (f) (L 1995, ch 1, § 15), embracing Supreme Court standards for life/death qualification (Harris, 98 [54] NY2d at 482-485). The Legislature sought to ensure that capital defendants receive the same protections afforded in federal prosecutions. To that end, and to craft an additional means of challenging a capital juror for cause, the lawmakers chose language akin to Witherspoon's requirements regarding life and death qualifications. Indeed, the Legislature has continually responded to Supreme Court rulings in framing the standards for jury selection in capital punishment cases. Based on this progression, and particularly on the passage of the original CPL 270.20 (1) (f) in 1970 in response to Witherspoon, we conclude that the remedy intended in the case of an unqualified penalty phase juror is the same as that mandated by Supreme Court jurisprudence—the reversal of the sentence, as opposed to the entire trial. This conclusion is buttressed by the explicit language of CPL 270.20 (1) (b) and (f). A subdivision (1) (b) challenge pertains to juror views related only to guilt. Inexorably, reversible error necessitates a new trial. By contrast, a subdivision (1) (f) challenge pertains only to jurors' capital sentencing views, and reversible error in that context necessitates a new sentencing proceeding. Indeed, in People v Harris (98 NY2d 452 [2002]), we interpreted CPL 270.20 (1) (f)'s "preclude" language to embody the federal "prevent or substantially impair" standard of Wainwright v Witt(469 US 412 [1985]). Considering that our interpretation of the standards governing life and death qualification is derived exclusively from federal precedent, a violation should likewise parallel the federal remedy. Moreover, there is no reason to grant a defendant a windfall by ordering a new guilt phase trial when the jury selection error pertains only to sentence. Here, the erroneous rulings pertaining to prospective jurors Nos. 23 and 855 were based on challenges that went only to their ability to deliberate fairly and impartially at the penalty phase. As to prospective juror No. 23, defense counsel specifically drew the connection between the juror's experience with domestic violence and his difficulty in considering life without parole. Additionally, the court dismissed prospective juror No. 855, erroneously concluding that she was unsuitable for the penalty phase. This error does not justify a new guilt phase trial. Moreover, because we conclude that the penalty phase should not have taken place, these errors are of no consequence. Procedurally, as Professor Preiser explains, a case is in limbo following reversal "absent specification of corrective action . . . [55] required to either finally dispose of the case (e.g.,dismissal of the indictment) or prescribe the next step or steps to be taken (e.g., new trial)" (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 470.10, at 527). Simply put, in a reversal, a reviewing court may employ various types of corrective action. Here, vacatur of the sentence alone is not only apt, but also the norm (see Gray v Mississippi, 481 US 648 [1987]; see also Heard, 31 Cal 4th at 966-967, 75 P3d at 66; Farina v State, 680 So 2d 392, 396 n 3 [Fla 1996]; Morgan, 504 US at 739). D. Defendant's Absence at Sidebar Conferences During Jury Selection Citing People v Antommarchi (80 NY2d 247 [1992]), defendant argues that his absence from two sidebar conferences during the group voir dire violated his statutory right to be present at the trial (see CPL 260.20). We conclude that defendant waived his right to be present at the bench conferences. CPL 260.20 requires that "[a] defendant must be personally present during the trial of an indictment." As we recently noted in People v Foster (1 NY3d 44 [2003]), this right extends to "sidebar and robing room conferences with prospective jurors regarding possible bias or hostility because they may give counsel input `in making discretionary choices during jury selection, based on impressions gained from seeing and hearing the juror's responses on voir dire'" (id. at 47, quoting People v Roman, 88 NY2d 18, 26 [1996]). "Moreover, although the right is fundamental, it may be waived" (Foster at 48, citing People v Vargas, 88 NY2d 363, 375-376 [1996]). Defendant waived his presence twice. First, at a March 1999 court appearance, defense counsel stated that "I would request now for the record to show that [defendant] does not have to be present, unless a decision is made by his attorneys that he would be present. We think it's highly prejudicial to bring him in front of the cameras, not allowed to dress in his proper clothing as he has been before, and I see no reason for it and just adds to the problems of this case. "So I ask at this time the record should reflect, Mr. Cahill, you understand that you're going to waive your right to be present in future appearances, except for hearings?" [56] Defendant answered yes. The court assented and asked to be told if defendant changed his mind. On another occasion, defense counsel advised the court that defendant waived his right to be present. The court asked defendant if this was true, and he answered yes. The court emphasized the point: "You've talked this over with your lawyer? You know you have an absolute right to be present at every stage of your trial?" Defendant replied: "Yeah, I understand that and I have talked it over with Mr. Priest." Finally, at the start of group voir dire, defense counsel told the court that defendant "doesn't wish to participate at the bench conferences." The conferences in question occurred soon thereafter. Although "a trial court need not engage the defendant in an on-the-record colloquy to ensure the requisite voluntary, knowing and intelligent nature of the waiver" (Foster at 49, citing People v Spotford, 85 NY2d 593, 598 [1995]; People v Epps, 37 NY2d 343, 350-351 [1975]), defendant twice asserted on the record that he accepted and understood the waiver.[23] III. Guilt Phase A. Defendant's Conviction Under Penal Law § 125.27 (1) (a) (v) Witness elimination murder is committed when a defendant intentionally kills a victim who "was a witness to a crime committed on a prior occasion and the death was caused for the purpose ofpreventing the intended victim's testimony in any criminal action" (Penal Law § 125.27 [1] [a] [v] [emphasis added]). As a threshold matter, the parties dispute the thrust of the words "for the purpose of." Defendant argues that the crime is not made out unless a defendant kills the victim for the sole purpose of preventing the victim's testimony. He argues, in essence, that the verdict cannot stand if there was proof that he had any motive for the murder other than his desire to prevent Jill's testimony. The People contend that evidence of multiple motives may support a conviction for witness elimination murder. Both parties cite the legislative memorandum, which states: "Killings must be committed `for the purpose' of preventing, influencing or retaliating for prior testimony. Thus, this provision is applicable when [57] there is both a defined victim characteristic, (witness, family member) and when it can be proven that the defendant's motivation for committing a killing was to prevent or influence the actual testimony of a victim in a criminal proceeding" (Mem of Codes Comm, at 2, Bill Jacket, L 1995, ch 1). Like the statutory language, however, this recitation does not address mixed motives. We conclude that the statute would have to be read too expansively to authorize a conviction when a defendant's motivation to eliminate a witness is insubstantial or incidental. Conversely, we cannot imagine that the Legislature intended to exclude a defendant—whose motivation to eliminate a witness was a substantial reason for the murder—merely because the defendant may have had other reasons or motives for the murder. Accordingly, the statute is satisfied if defendant's motivation to eliminate Jill as a witness was a substantial factor in murdering her, even though he may have had mixed motives. Applying this standard, we address defendant's claim that his conviction for murder in the first degree based on witness elimination (see Penal Law § 125.27 [1] [a] [v]) is both legally insufficient and against the weight of the evidence. We conclude that the evidence adduced on this count is legally sufficient, but that the verdict is against the weight of the evidence. CPL 470.30 directs that criminal appeals taken directly to our Court are governed by CPL 470.15 and 470.20, which in turn address the scope of our review and the corrective action to be taken upon reversal or modification. Pursuant to CPL 470.15 (2) and (4), reversal or modification may be based on a determination that the evidence adduced at trial is not legally sufficient to establish the defendant's guilt. On the other hand, CPL 470.15 (5) allows for reversal or modification when a verdict is, in whole or in part, against the weight of the evidence. Legal sufficiency review and weight of the evidence review involve different criteria. In assessing legal sufficiency, a court must "determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987], citing Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). By contrast, weight of the evidence review recognizes that "[e]ven if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further" (Bleakley, [58] 69 NY2d at 495). An appellate court weighing the evidence "must, like the trier of fact below, `weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" (id., quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). If "based on all the credible evidence a different finding would not have been unreasonable" and if the "trier of fact has failed to give the evidence the weight it should be accorded," the appellate court may set aside the verdict (id.).[24] When an appellate court performs weight of the evidence review, it sits, in effect, as a "thirteenth juror" (Tibbs v Florida,457 US 31, 42 [1982]). Our dissenting colleagues are critical of our weight of the evidence analysis, claiming that this review is not an "open invitation" to substitute our own judgment for that of the jury. Of course that is true. But on the other hand, weight of the evidence review does not connote an invitation to abdicate our responsibility. A guilty verdict based on a legally sufficient case is not the end of our factual analysis but the beginning of our weight of the evidence review. Indeed, we are not only authorized to conduct this review but also constitutionally compelled to do so (NY Const, art VI, §§ 3, 5). Under the Constitution of our state, "in capital cases in which the sentence of death has been imposed, this court is vested with the power to and must review the facts" (People v Davis,43 NY2d 17, 36 [1977], citing NY Const, art VI, §§ 3, 5; People v Carbonaro, 21 NY2d 271, 274 [1967]). In People v Crum (272 NY 348 [1936]), we underscored the importance of weight of the evidence review, noting that "[w]e are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt." (Id. at 350.)[25] [59] Thus, because a death sentence appeal comes directly to our Court, we conduct this type of analysis, which is routine in Appellate Division review of criminal cases (CPL 470.15 [5]). There is nothing the least bit novel about Appellate Division weight of the evidence reversals.[26] In arguing for witness elimination murder, the People drew upon certain events in defendant's life and matched them with steps he took toward planning Jill's murder. The People linked (1) the May 1998 Family Court appearances with defendant's Internet searches for cyanide; (2) the June and July 1998 developments in defendant's assault case with his procurement of cyanide; (3) defendant's October 1998 conversation with Patricia Cahill, defendant's mother, about her visit to Jill in the hospital with defendant's first disguised entrance into the hospital (in which a nursing assistant discovered defendant in Jill's room); and (4) defendant's upcoming Huntley hearing in the assault case with his having committed the murder. Viewed in the light most favorable to the People (see People v Carr-El, 99 NY2d 546, 547 [2002]), this timeline theory establishes a legally sufficient case. But it is barely that, and is decidedly against the weight of the evidence. First, the May 1998 Family Court appearances primarily concerned the Cahill children. At the May 11 hearing, the Assistant District Attorney stated that the criminal court had issued an order of protection on behalf of the children and that they were potential witnesses in the assault case. The only evidence pertaining to the May 19 hearing involved psychological testing for the children. Jill's status as a witness was not mentioned during these hearings—in fact, Jill was not mentioned at all. The better part of the evidence reveals that defendant was motivated to poison his wife because their marriage and family [60] life were being destroyed, not because he wanted to kill a witness to the assault case.[27] Using the prosecution's timeline, a critical feature refutes its witness elimination theory: defendant procured potassium cyanide long before there was any possible belief—on anyone's part—that Jill could ever testify at a trial, given her condition.[28] After the assault, Jill suffered from a host of medical complications that utterly incapacitated her as a witness. Further, one doctor testified that as late as August 1998, when Jill entered the coma rehabilitation unit, her cognitive abilities ranked at a five or six on a 25-point scale. Moreover, at the corresponding criminal proceedings, there was no mention that Jill might or possibly could testify against defendant. Indeed, there is not a shred of evidence in this record that Jill had even retained a memory of the assault. Most compellingly, an assistant district attorney testified that up to the date of Jill's murder no law enforcement official had even interviewed her about the assault. In seeking to prove that defendant knew Jill was able to speak and was afraid of what she would say, the People relied largely on the testimony of Patricia Cahill, defendant's mother. She [61] merely testified, however, that defendant told her that "`I hope that when this is all concluded that she can tell the truth about what led to the break-up' of their marriage." This statement does not evince defendant's fear of Jill's possible testimony in the assault trial; it is more a comment about the dissolution of his family. In addition, Patricia Cahill testified that, during a visit, Jill "said something" to the nurses, and also that she told defendant about Jill's physical condition. But we do not know what Jill said, or what Patricia Cahill told defendant about Jill's status. Furthermore, Fred Russell, Jill's father, stated that "there was not a word spoken" during Patricia Cahill's visit to the hospital. Thus, Patricia Cahill's testimony does not even suggest, let alone reveal, what defendant knew about Jill's condition and speaking ability. It does not begin to show that he was afraid that Jill would testify against him at the assault trial.[29] Additional factors rebut the witness elimination theory. The very brutality of the April 1998 assault permits the compelling inference that, even as of then, defendant wanted to kill his wife and that ultimately doing so fulfilled his previously formed intent, which sprang from the impending divorce.[30] Beyond that, defendant had fully confessed to the assault and the prosecution had a powerful case without Jill's testimony. In confessing to the assault, defendant admitted that he hit Jill on the head at least three or four times with the baseball bat. He further admitted that he struck her while she was unarmed, thus foreclosing any plausible claim of self-defense. He also confessed to having wounded himself, a deception designed to make it look as if he acted in self-defense, and that he attempted [62] suicide after the assault. In light of these candid disclosures, there is scant basis to believe that defendant thought he could avoid an assault conviction by murdering Jill. In weighing the conflicting inferences that can be drawn from the facts, the proof leads us to conclude that defendant, to put it plainly, wanted to kill Jill at the hospital for reasons that had virtually nothing to do with her ability to testify against him. The weight of the evidence does not support witness elimination as a substantial motive for the murder, and we therefore hold that the conviction for murder in the first degree under Penal Law § 125.27 (1) (a) (v) must be vacated. B. Defendant's Conviction Under Penal Law § 125.27 (1) (a) (vii) In addition to witness elimination murder, defendant was convicted under Penal Law § 125.27 (1) (a) (vii). That section elevates intentional murder to capital-eligible murder when a defendant with "intent to cause the death of another person . . . causes the death of such person . . . and . . . the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of . . . burglary in the first degree or second degree." As a matter of statutory interpretation, we conclude that the conviction cannot stand because the burglary carried no intent other than to commit the murder. Penal Law § 125.27 (1) (a) (vii) is best understood in light of the Legislature's purpose in devising aggravating factors as predicates for the death penalty. In Tuilaepa v California (512 US 967, 971-972 [1994]), the Supreme Court held that "[t]o render a defendant eligible for the death penalty in a homicide case . . . the trier of fact must convict the defendant of murder and find one `aggravating circumstance' (or its equivalent) at either the guilt or penalty phase. See, e.g., Lowenfield v. Phelps, 484 U.S. 231, 244-246 (1988); Zant v. Stephens, 462 U.S. 862, 878 (1983)." The Legislature drew up a list of aggravating factors to create a subclass of defendants who, in contrast to others who commit intentional murder, it thought deserving of the death penalty. By this device, the lawmakers saw to it that the death penalty could not fall randomly on all murder defendants. The Legislature's factors govern the discretion of courts and juries by limiting capital punishment to certain enumerated categories of [63] intentional killings, ensuring that the State follows its "constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty" (Godfrey v Georgia, 446 US 420, 428 [1980]; see also Zant, 462 US at 876-878). Penal Law § 125.27 (1) identifies death-eligible defendants as those who commit intentional murders in the context of one or more of 13 aggravating factors. Five aggravating factors relate to the killing of a member of a specific group (police officers, peace officers, corrections employees, witnesses and judges [subpars (i)-(iii), (v), (xii)]), two relate to the present or past circumstances of the offender (defendants serving life sentences and defendants previously convicted for murder [subpars (iv), (ix)]), four address the circumstances of the killing or criminal transaction (murder committed in furtherance of certain enumerated felonies, multiple murders as part of the same criminal transaction, murder by torture and terrorism [subpars (vii), (viii), (x), (xiii)]). The remaining two involve contract killing and serial murder (subpars [vi], [xi]) (see Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 125.27, at 386-391).[31] Among other arguments, defendant contends that he cannot be convicted under Penal Law § 125.27 (1) (a) (vii) because the statute requires that the underlying felony (here, burglary in the second degree) have an objective apart from the intentional murder and that the burglary was merely an act that enabled the murder, one of many anticipatory steps along the way.[32] By the terms of the indictment, defendant was charged with having killed his wife "in the course of committing or attempting to commit and in the furtherance of the crime of Burglary in the Second Degree."[33] Because our analysis turns on whether defendant's burglary qualifies as an aggravating factor, we must address the crime of burglary in the setting before us. [64] Burglary is part of a larger category of criminal behavior that involves intrusion upon property (Penal Law art 140). The statutory hierarchy is relevant. The lowest degree of intrusion is criminal trespass (a violation), by which a person knowingly enters or remains unlawfully in or upon premises (Penal Law § 140.05). From there, a trespass becomes more serious, depending on the nature of the premises and whether the trespasser possesses certain weapons (Penal Law §§ 140.10, 140.15, 140.17). The critical distinction between burglary and trespass is that a trespass in a building or dwelling is complete when a person knowingly enters or remains unlawfully in those premises. Burglary requires more. There can be no burglary unless the trespasser intends to commit a separate crime when entering or remaining unlawfully in a building (see People v Gaines, 74 NY2d 358 [1989]). Burglary is thus an aggravated form of criminal trespass, in which the aggravating factor is the trespasser's intent to commit a separate crime (see People v Henderson, 41 NY2d 233 [1976]; see also CJI2d [NY] Penal Law § 140.25 [1] [b]). With that in mind, we may better appreciate how burglary fits into the design of Penal Law § 125.27 (1) (a) (vii). The statute begins by declaring that every first degree murder must include an intentional (second degree) murder. An additional aggravating factor—murder "plus"—raises the crime to murder in the first degree. A candidate for first degree murder is the burglar who enters a dwelling to steal or rob or rape and in addition kills someone intentionally, in the course and furtherance of the burglary. It is this double crime—murder "plus"—that is the defining core of Penal Law § 125.27 (1) (a) and renders the offender eligible for the death penalty. The case before us does not fit this statutory paradigm. Burglary requires an intent to commit a crime in the burglarized premises, and here the prosecutor uses defendant's "intent to kill" to satisfy the burglary definition. But the very same mens rea—the intent to kill—also defines intentional murder (Penal Law § 125.25). Thus, the prosecution employs the identical mens rea both to define burglary and to elevate defendant's intentional murder to murder in the first degree. The defense argues that this circularity is impermissible and that the capital murder statute contemplates a felonious intent independent of the murder itself. We agree. [65] A burglar who intends, for example, both to rob and murder is committing two crimes, both felonies, whose intents are purposively independent of each other. The robbery may be committed in connection with the murder, but as a substantive crime it is distinct from the murder and can be aptly characterized as an aggravating factor that fulfills Penal Law § 125.27 (1) (a) (vii). It is the "plus" (in the "murder plus" formulation) that is necessary to make it a death-eligible crime. Burglary, however, is different because it is a trespass—a misdemeanor—that becomes a felony only if the trespasser intends to commit a separate crime when entering a building (see Gaines). If the burglar intends only murder, that intent cannot be used both to define the burglary and at the same time bootstrap the second degree (intentional) murder to a capital crime. To do so would not narrow the class of those eligible for the death penalty, but would widen it. In promulgating the list of aggravators, the Legislature did not expressly sweep within Penal Law § 125.27 all killings in which the murderer unlawfully entered the victim's home. We decline to imply such an intent, let alone write one into the statute, in the face of the unswerving legislative goal of narrowing rather than expanding the class of defendants eligible for the death penalty. Nor will we, in the absence of legislative intent or expression, have life or death hinge on whether a defendant engaged in conduct that simply enabled the intended murder and had no point of its own. To do so would spurn rather than follow the Legislature's objectives. In arguing that defendant's burglary satisfies Penal Law § 125.27 (1) (a) (vii), the prosecutors and our dissenting colleagues rely heavily on People v Miller (32 NY2d 157 [1973]). They assert that Miller applies and that if we read Penal Law § 125.27 (1) (a) (vii) as requiring a felony independent of the murder, we will be overruling a body of felony murder jurisprudence that extends back three decades. This is not so. Miller does not govern this case, and the reason is plain: in Miller, the Court interpreted Penal Law § 125.25 (3), the felony murder statute. Here, we are reviewing not felony murder but Penal Law § 125.27 (1) (a) (vii), a capital punishment statute directed at those who commit intentional murder, and more. Miller is distinguishable on the facts and in its legal premise. By today's decision, we leave our body of felony murder jurisprudence intact. In Miller, the defendant knocked on the door of Fennell's apartment intending to assault Fennell. When Fennell opened [66] the door, Miller stabbed him in the arm. Fennell's roommate, Aleem, intervened and Miller killed Aleem. Miller was convicted of felony murder and manslaughter in the second degree as to Aleem and first degree assault as to Fennell. The Court upheld the felony murder conviction as against Miller's contention that neither the assault on Fennell nor the killing of Aleem could serve as a felony to satisfy the felony murder doctrine. The defense argues that Miller stands at most for the proposition that the defendant's conviction rested on his having killed the roommate, Aleem, to advance an independent, qualifying felony (burglary) and that the rest of the opinion is dicta, pointing out that Judges Jones and Gabrielli concurred in the result. The concurring Judges stated that Miller's conviction for felony murder could properly be sustained on the basis of his having killed Aleem and that the Court need not have addressed the question whether the assault upon Fennell could qualify as a felony under the felony murder statute.[34] The prosecution disagrees with defendant's characterization of the case as partly dicta. The obvious response to this dispute over the reach of Miller is that in the case before us we are not in the felony murder arena and need not determine how we would rule if we were. We therefore have no occasion to decide whether in a felony murder case—which this is not—Millershould be extended to a defendant who enters a building to murder the victim (in contrast to having the intent to assault the victim, as in Miller). We did not address that question in Miller, let alone decide it, and it would be improvident for us to render an opinion in a hypothetical case under a statute involving concepts and purposes different from the one before us.[35] [67] In contrast to Penal Law § 125.27 (1), felony murder covers nonintentional killings. The very purpose of the felony murder doctrine is to utilize the underlying felony as a substitute for the defendant's murderous intent and thereby raise an unintentional killing to the level of murder (see People v Chico, 90 NY2d 585 [1997]; People v Lytton, 257 NY 310 [1931]). As we said in People v Hernandez (82 NY2d 309, 317 [1993]), "The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing. By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing" (citations omitted). The felony murder concept was derived from the common law, at which no intent to kill was necessary. It was enough that the victim was killed while the accused was engaged in the commission of a felony.[36] Under the common law, the felonious intent was imputed to the committed act, and, if it were homicide, made it murder (see People v Enoch, 13 Wend 159 [1834]).[37] Penal Law § 125.27 (1) (a) (vii) borrows language from the felony murder statute but is critically different because it deals with intentional, not unintentional, killings. The purposes of [68] the capital statute and the felony murder statute are distinct, and the felonies covered by them are not the same. For example, under the felony murder statute, the killing need not be committed by one of the people engaged in the commission of the underlying crime (People v Hernandez, 82 NY2d 309 [1993]), whereas Penal Law § 125.27 (1) (a) (vii) does not apply where the defendant's liability is based on someone else's conduct (unless the defendant commanded the murder). Moreover, felony murder liability for the death of a victim has been broadly construed (see e.g. People v Ingram, 67 NY2d 897 [1986]; People v Matos, 83 NY2d 509 [1994]), whereas the Legislature crafted Penal Law § 125.27 (1) (a) to narrow the class of eligible offenders. Conceptually, Penal Law § 125.27 (1) (a) begins with murder in the second degree and builds onit. Conversely, felony murder builds toward it. Thus, felony murder ends up as murder, whereas Penal Law § 125.27 (1) (a) begins with murder. The two concepts share certain components but have entirely different objectives and constituents, and were statutorily constructed to reach different types of homicides and different categories of defendants.[38] For these reasons, the jurisprudence underlying the Miller felony murder statute cannot be equated with the goals of Penal Law § 125.27 (1) (a). Furthermore, Miller deals with assault and we have not been made aware of a single case in which this Court (or any appellate court in New York) ever discussed whether a felony murder conviction may be based upon a burglary with an underlying intent to kill, let alone held that way.[39] The parties cite out-of-state cases dealing with whether the intent to kill can serve as a predicate for burglary when the same intent is used to elevate a murder to a capital offense. It is appropriate that we consider these decisions. The prosecution cites State v Tillman (750 P2d 546 [Utah 1987]) and Smith v [69] State (499 So 2d 750 [Miss 1986]), in which the highest courts of Utah and Mississippi upheld capital sentences where the intentional murders were each aggravated by having been carried out during a burglary with the killing as its objective.[40] The defense counters with Parker v State (292 Ark 421, 731 SW2d 756 [1987]) and People v Green (27 Cal 3d 1, 59-62, 609 P2d 468, 504-506 [1980]). In Parker, the Arkansas Supreme Court held that the defendant's burglary was a facilitating step along the way in fulfilling his intent to commit murder. Because the underlying burglary had no objective independent of the murder, the court refused to elevate the murder to capital offense status. The Parker court stressed that the Arkansas statute required that the murder be committed in the course of and "in furtherance of" the felony. The court pointed out that Parker did not commit the murder "in furtherance of" the burglary and that the very opposite was true: he committed the burglary in furtherance of his intent to kill his victim. We note also that in the most recent case on this subject the Supreme Court of Delaware reached the same conclusion (see Williams v State, 818 A2d 906 [Del 2002]). In reversing a death sentence, the court held that "if the intent of the burglary was to commit murder, the death that occurred was not `in furtherance of' the burglary" (id. at 908). Although it may have been carried out "`in the course of' the burglary," it was not "carried out `in furtherance of' it" (id. at 913). Putting aside the possible differences in the language and legislative histories of the statutes in Utah, Mississippi and New York, we respectfully disagree with the rationale expressed in Tillmanand Smith.[41] As for Parker and Williams, we note that our statute—like those in Arkansas and Delaware— [70] requires that the murder be in the course of and "in furtherance of" the burglary.[42] The Supreme Courts of Arkansas and Delaware based their analyses chiefly on the "in furtherance of" requirement and held it cannot be satisfied where the burglary is committed to further the murder, as opposed to the converse. Because we reach the same result on slightly different grounds, we need not and do not determine whether the prosecution is correct in its assertion that defendant killed his wife "in furtherance of" the burglary. It is certain that the converse is true—defendant committed the burglary to further his intent to kill his wife. That being so, the burglary was not meaningfully independent from the murder. Defendant's trespass on the hospital premises was merely a prerequisite to his committing the murder—an enabling measure that had no purpose or substance other than to serve his only goal, to kill his victim. In Green (27 Cal 3d at 59-62, 609 P2d at 504-506), the Supreme Court of California addressed a question similar to the one before us. Green is pertinent because the California capital punishment statute does not require that the murder be "in furtherance of" the felony. The court therefore did not rely on the "in furtherance" language that influenced the results in Parkerand Williams. Although Green involved a robbery, the analysis is germane and bears repetition, considering that we, like the California Supreme Court, hold that the felonious intent must be independent of the murder, if it is to qualify as an aggravating factor: "The Legislature's goal is not achieved, however, when the defendant's intent is not to steal but to kill and the robbery is merely incidental to the murder—`a second thing to it,' as the jury foreman here said—because its sole object is to facilitate or conceal the primary crime. In the case at hand, for example, it would not rationally distinguish between murderers to hold that this defendant can be subjected to the death penalty because he took his victim's clothing for the purpose of burning it later to prevent identification, when another defendant who committed an identical first degree murder could not be [71] subjected to the death penalty if for the same purpose he buried the victim fully clothed—or even if he doused the clothed body with gasoline and burned it at the scene instead. To permit a jury to choose who will live and who will die on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other listed felonies would be to revive `the risk of wholly arbitrary and capricious action' condemned by the high court plurality in Gregg." (27 Cal 3d at 61-62, 609 P2d at 505-506 [citations omitted].)[43] In sum, we reject the approach adopted by Mississippi and Utah and, while aware of the differences among the respective statutes, join Delaware, Arkansas and California in refusing to elevate a case such as this to capital murder status. We acknowledge that Penal Law § 125.27 (1) (a) (vii) could be read differently and conceivably be given the interpretation urged by the prosecution. But to do so we would have to stretch the statute's meaning and bend the language to encircle the case before us. Requiring an intent independent of the intentional murder of the victim, as we do, is both the most sensible reading of the statute and the one most consonant with the Legislature's intent in establishing the statute's aggravating factors.[44] [72] We are also aware of the dissent's contention that our interpretation could engender results that, on the surface, appear incongruous. The defendant who breaks into a home with the joint intent of killing the occupant and stealing an appliance would, under our interpretation, be death-eligible, but a defendant who breaks into the same home for the sole purpose of killing the occupant would not. This might appear as a surface flaw, but on further analysis the result is fully in keeping with the statutory plan. In the former case, the defendant who burglarizes in order to steal and commits intentional murder would be punished more severely under Penal Law § 125.27 (1) (a) (vii) for having committed both murder and a burglary intended apart from the murder. This result is neither arbitrary nor unjust, and is more faithful to the Legislature's language and design.[45] IV. Conclusion Accordingly, the judgment of Onondaga County Court should be modified by reducing defendant's conviction of two counts of murder in the first degree to one count of murder in the second degree and remitting to that court for resentencing on the second degree murder as well as the remaining counts and, as so modified, affirmed. G.B. SMITH, J. (concurring). I concur with the Court's conclusions that the trial court's failure to grant appropriate cause challenges went to the sentencing phase of the trial and does not require a new trial, and that the convictions for capital murder, murder in the first degree with burglary as the underlying felony and murder in order to eliminate a witness from testifying must be reversed. I join the Court's decision insofar as it concludes that defendant was convicted of intentional murder [73] beyond a reasonable doubt and remits for sentencing for murder in the second degree and associated charges. I address two other issues—the deadlock jury instructions which are required to be given by CPL 400.27 (10) and the arbitrariness of the death penalty statute. Both issues have been raised by the defendant. Moreover, the dissent, while concluding that the judgment should be affirmed, does not address all of the arguments raised by the defendant. While I would prefer that the entire Court, majority and dissents, deal with these issues, I address them because they are central to a determination of the validity of a death penalty prosecution. Because the provision requiring the jury to receive a particular deadlock instruction is coercive, I would reach that issue. Judge Ciparick joins me in concluding that the deadlock instruction is coercive. I also disagree with the failure of the Court to address the arbitrariness of the death penalty scheme, and would reach that issue. On April 21, 1998, two weeks after signing a separation agreement with his wife, defendant James F. (Jeff) Cahill assaulted his wife, Jill Cahill, with an aluminum baseball bat. The incident left her unconscious, with severe head injuries for which she spent months in a hospital. Defendant first claimed that she came at him with a knife and he hit her in self-defense. Later he admitted that he continued to hit her after she dropped the knife. "When Jill Cahill fell down in the mud room after [I] hit her, she dropped the knife. After helping her back into the kitchen, [I] retrieved the knife from the mud room and put it on the kitchen floor. Back in the kitchen, the struggle resumed, and [I] hit her with the bat at least twice when she was not holding the knife." Defendant further admitted that his wounds were self-inflicted. "[I] used a nail to make the scratches on [my] shoulder and arm." Defendant was arrested and indicted for assault in the first degree (Penal Law § 120.10) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). As a result of the arrest and indictment, defendant was not allowed to have contact with his wife or his two children. On October 27, 1998, while Jill was still in the hospital recovering from the assault, defendant entered her room and poisoned her with cyanide.[1] Just before Jill was poisoned, several nurses and other hospital workers saw defendant in the hospital disguised as a janitor. [74] About a week earlier, one of the nursing assistants recalled seeing defendant in the hospital so disguised.[2] Defendant was arrested at home on October 27th for the incident at the hospital. The next day the police seized a computer from the Cahills' house. From the computer, the police were able to ascertain evidence of Internet searches for information about cyanide, and a letter on letterhead from a local company ordering cyanide. It was later determined that the letter and the letterhead were forgeries. Additionally, the police recovered a container of cyanide which was hidden near the shed on the property. Defendant was indicted for one count of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]), with burglary as the underlying felony (Penal Law § 140.25); one count of murder in the first degree (Penal Law § 125.27 [1] [a] [v]), a killing with the intent to prevent a witness from testifying; two counts of murder in the second degree, burglary in the second degree, criminal possession of a weapon in the fourth degree and aggravated criminal contempt (Penal Law § 215.52).[3] In January 1999 the two indictments were consolidated. During the guilt/innocence phase of the trial (August 3 to August 9, 1999), after the People presented their case, defendant called one witness. On August 10, 1999, at the conclusion of the trial, defendant was found guilty of one count of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]), with burglary as the underlying felony (Penal Law § 140.25); one count of murder in the first degree (Penal Law § 125.27 [1] [a] [v]), killing to prevent a witness from testifying; two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01); and one count of assault in the first degree (Penal Law § 120.10). During the penalty phase, August 17 to August 19, 1999, defendant, after the People's case, called 21 witnesses. On August 20, 1999, the jury determined that defendant should be sentenced to death as to each count of murder in the first degree. On October 5, 1999, defendant was sentenced to 12½ to [75] 25 years in prison for assault in the first degree and a concurrent sentence of one year on the two counts of criminal possession of a weapon. Pursuant to CPL 450.70 (1), defendant filed his appeal directly to this Court. The Current Disposition Four Judges of this Court conclude that defendant was properly convicted of intentional second degree murder. The dissents, without addressing all of the arguments raised by the defendant, conclude that he was properly convicted of both counts of capital murder. In People v Harris (98 NY2d 452 [2002]) and again in this case, defendants have raised issues concerning the constitutionality of the capital murder legislation. I believe those issues should be addressed. I continue to believe that heightened scrutiny must be applied to all aspects of a capital murder case (see People v Harris, 98 NY2d at 497-506). Even if that doctrine is not applied here, there are arguments raised by defendant which go to the heart of any case under the capital murder legislation. These include the court's instructions on a deadlocked jury, instructions required by CPL 400.27 (10), and the arbitrariness of the death penalty legislation. Challenges for Cause to Some Prospective Jurors A prospective juror must give an unequivocal assurance that he or she can be fair and impartial (People v Johnson, 94 NY2d 600 [2000]). In People v Johnson this Court stated: "Thus, from the statute [CPL 270.20] and case law, the guiding principles are perfectly plain: when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence. Obviously, when potential jurors themselves openly state that they doubt their own ability to be impartial in the case at hand, there is far more than a likelihood of bias, and an unequivocal assurance of impartiality must be elicited if they are to serve" (94 NY2d at 614 [emphasis in original]). Thus, a trial court must excuse a prospective juror who displays a disqualifying state of mind unless the juror gives a clear and [76] unambiguous assurance that he or she can be impartial. "[T]he Trial Judge should require the prospective juror to `expressly state that his prior state of mind . .. will . . . not influence his verdict, and . . . that he will render an impartial verdict based solely on the evidence'" (People v Johnson, 94 NY2d at 613, quoting People v Biondo, 41 NY2d 483, 485 [1977]). A general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient. Instead, "jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict. If there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have `replaced one impartial juror with another'" (People v Arnold, 96 NY2d 358, 362 [2001]). Defendant argues that the trial court should have dismissed prospective juror No. 23 and should have rejected the People's cause challenge with respect to prospective juror No. 855. While recognizing that some of the initial answers given by those prospective jurors could arguably reflect on their ability to be impartial on the guilt phase, I join the Court in its conclusion that the potential lack of impartiality of these two prospective jurors affected their impartiality only as to the sentencing phase of the trial. Anticipatory Deadlock Instruction Where the death penalty is sought on a first degree murder indictment, if the jury finds the defendant guilty, it must then determine how the defendant's crime should be punished. To assist the jury with its sentencing responsibilities, CPL 400.27 (10) requires the trial court to instruct the jury that it must unanimously decide whether to impose the death sentence or a sentence of life imprisonment without the possibility of parole. That provision further requires the court to instruct the jury that "in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty-five years and a maximum term of life." Defendant argues that this instruction is unconstitutional because of the substantial risk that jurors who believed that a sentence of life without parole was appropriate would be coerced into voting for the death penalty in order to avoid the possibility that the defendant might someday be released from prison. [77] At the outset, it is necessary to note that because of its severity and irrevocability, the penalty of death is qualitatively different than any other type of sentence, regardless of the length of the period of imprisonment (see Woodson v North Carolina, 428 US 280, 305 [1976] [plurality op]). Because of this qualitative difference, the United States Supreme Court has recognized that there is a heightened "need for reliability in the determination that death is the appropriate punishment in a specific case" (id.; see People v Harris, 98 NY2d at 497-506 [Smith, J., concurring in part and dissenting in part], citing Furman v Georgia, 408 US 238, 306 [1972] [Stewart, J., concurring]; Caldwell v Mississippi, 472 US 320, 340 [1985]; California v Ramos,463 US 992, 998-999 [1983]). In order to ensure that "the death penalty is indeed imposed on the basis of `reason rather than caprice or emotion,'" the Court has "invalidated procedural rules that tended to diminish the reliability of the sentencing determination" (Beck v Alabama, 447 US 625, 638 [1980]; see Gardner v Florida, 430 US 349, 358 [1977]). A jury instruction that introduces a level of uncertainty and unreliability "cannot be tolerated in a capital case" (Beck at 643; see People v Harris, 177 Misc 2d 160, 162 [Sup Ct, Kings County 1998, Feldman, J.]). New York leaves the decision of capital sentencing in the hands of the jury. Like the majority of such jurisdictions, New York provides that when a jury is unable to reach a unanimous verdict, the trial judge assumes the responsibility to impose the defendant's sentence according to its respective statute. New York is but one of four states that instructs its juries as to the consequences of a failure to decide between death and some determined lesser sentence.[4] However, in each of the other states that requires such an instruction, the court in the event of deadlock, is required to impose a lesser penalty that the jury had been considering. Only in New York is the trial judge required to impose a sentence more lenient than the two sentencing options upon which the jury had deliberated. Such a sentencing scheme is irrational and carries a substantial risk of coercing a unanimous sentencing verdict from a jury, even under circumstances where individual jurors hold a genuine belief that their position, though different than that of their fellow jurors, is the just one. The sentencing scheme to be employed upon a jury deadlock is therefore unconstitutional. [78] While the legislative history of the New York death penalty statute offers no insight into why the only sentence available for the trial court to impose upon a jury deadlock would be a sentence more lenient than the options the jury had been considering, the legislative debates demonstrate that the members of the Legislature were aware of the risk that the jury instruction could result in a coerced verdict but consciously disregarded the risk.[5] During the State Senate debate over the issue of the anticipatory deadlock instruction, the following exchange took place: "SENATOR DOLLINGER: . . . [H]ow do you avoid the problem of a jury that is hung up on the issue of either life in prison without parole or the death penalty of putting additional pressure on the jurors, knowing that if they failed to agree they are going to face a penalty that is less than either of the two penalties that they are currently in dispute over? "SENATOR VOLKER: That's, I think, the option that they face." (New York State Senate Debate on Senate Bill S 2850, Mar. 6, 1995, at 1912.)[6] At a subsequent exchange, the following occurred: "SENATOR DOLLINGER: . . . But isn't it inherently coercive to tell them that you have to [reach a consensus on the most severe penalties]; otherwise, there is going to be another penalty imposed? "SENATOR VOLKER: They don't have to do anything. I mean what you do have to do, I think, Senator, the problem would be—my own personal feeling is I think there could be a problem if you didn't inform the jury right up front as to what happens when they fail to make a decision" (id. at 1916). [79] Senator Volker has since introduced a bill amending the death penalty statute that, among other things, proposes that the sentence to be imposed by the trial judge upon a jury impasse with regard to sentencing would be the non-death sentence that the jury had been considering—life imprisonment without the possibility of parole (see 2001 NY Senate Bill S 5409, New York 224th Annual Legislative Session, introduced May 31, 2001). The sentencing consequence of a deadlock, as provided by CPL 400.27 (10), creates an intolerable risk of coercion on the jury's deliberative process. Essentially, jurors are informed at the very outset of their deliberations that if they cannot unanimously decide whether the defendant should be sentenced to death or to life imprisonment without the possibility of parole, the judge will impose a prison term of life with the possibility of parole after serving from 20 to 25 years. Such an instruction plainly goes to the heart of one of the chief concerns a deliberating jury would have about the defendant—his or her future dangerousness (see Simmons v South Carolina, 512 US 154, 162 [1994] ["a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system"]; Jurek v Texas, 428 US 262, 275 [1976] ["any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose"]). Future dangerousness of a defendant is such a crucial issue for a jury deciding a defendant's sentence because jurors do not want to be responsible for the release of a defendant they believe will continue to be a societal threat (see William J. Bowers and Benjamin D. Steiner, Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing, 77 Tex L Rev 605, 701 [1999] [according to accounts, jurors often impose death, not because they deem the sentence to be retributively appropriate, but for the incapacitative purpose of removing the defendant from society]). According to an empirical study conducted by the Capital Jury Project in South Carolina, one of the most important considerations jurors make in assessing a defendant's future dangerousness is "the probable actual duration of the defendant's prison sentence" if the death penalty is not imposed (Eisenberg and Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L Rev 1, 4, 7 [1993]). Jurors perceive a defendant likely to be released after a shorter prison term as more dangerous than the same defendant expected to serve a longer term. Consequently, jurors tend [80] to sentence to death those defendants expected to serve a shorter term (see id.; Laurie B. Berberich, Note, Jury Instructions Regarding Deadlock in Capital Sentencing, 29 Hofstra L Rev 1301, 1324 [2001] ["The sooner (jurors) think the defendant will get out of prison, the more likely they are to vote for death"]).[7] It rationally follows that a jury's perception of a defendant's future dangerousness is vastly diminished when the only options for his sentence are death and life imprisonment without the possibility of parole. The availability of a life sentence without the possibility of parole necessarily means that the death penalty is no longer the only way to achieve a defendant's permanent incapacitation (see Bowers and Steiner, Death by Default, 77 Tex L Rev at 707 [life without parole and death are "essentially equivalent for incapacitative purposes"]). "Indeed, there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that he never will be released on parole" (Simmons, 512 US at 163-164). However, a jury instruction that the failure to reach a unanimous verdict between those two options would result in a parole-eligible life sentence interjects the issue of the defendant's future dangerousness into the deliberative process where it otherwise would have no place. Where jurors are divided as to which incapacitative sentence to impose, they inevitably are faced with the possibility that if they do not come to a consensus, the defendant will be sentenced to a term that will possibly result in his eventual release from prison—a prospect [81] that the jurors are not being asked to contemplate, and possibly may not want.[8] [82] Plainly, the most disturbing risk that the statute poses is that a juror who is in the minority in his or her vote for life without parole would inevitably feel pressured to vote with the majority for the death sentence in order to avoid the possibility of defendant's eventual freedom.[9] And where the jury vote is substantially in favor of the death sentence, the jurors in the minority no longer are choosing between death and life without parole; they are choosing between death and life with the possibility of parole within 20 to 25 years as a result of creating an impasse. Faced with the possibility that they will not otherwise be able to prevent the defendant's return to society, jurors favoring life without parole may relinquish their conscientiously held beliefs and vote for the death penalty (see Berberich, Jury Instructions, 29 Hofstra L Rev at 1325 ["Common sense leads to the conclusion that a juror who would impose death over a life sentence because of his or her fear that a capital offender would be released on parole, would also impose a death sentence if he or she believed that a hung jury would lead to the same result."]). A unanimous death sentence, secured under these circumstances, w...
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Case facts

The case presents a mix of events that transpired within a short course of time, leading to
the current court proceedings. From the information given by the different authorities, its clear
that the case involves two different individuals who for first, had already agreed to separate but
continually lived together and under the same roof. Additionally, the issues that presented the case
before the court involved a fight that broke up between the two couple and which created a
significantly immense situation leading to the injury of the wife, Jill. However, the court charged
the defendant, who is the husband to Jill with two different first-degree murder cases where he
becomes deemed to appear and defend himself.
However, on the first questioning at the police house, the defendant presented a different
scenario which did not incriminate him where he mentioned his actions as self-defence. Later

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