Defendant Fullan hired two individuals to abduct his business associate Alpert. In the process of forcing Alpert into a refrigerator, the kidnappers shot him three times. Fullan and the two individuals were convicted of three counts of murder in the second degree and two counts of felony murder; the underlying felonies were attempted kidnapping in the first degree and robbery in the first degree.
In 1990, the Appellate Division, relying on People v. Campbell, 72 N.Y.2d 602 (N.Y. 1988), reversed the convictions of attempted kidnapping in the first degree and the felony murder convictions of one of the accomplices. After this reversal but before Fullan's appellate review, the Court of Appeals decided People v. Miller, 87 N.Y.2d 211 (N.Y. 1995). The Miller Court found that in factual circumstances similar to the Fullan case, attempted robbery in the first degree is a legally cognizable crime. In Fullan however, the Appellate Division, without mentioning the Miller decision, reversed the conviction of attempted kidnapping in the first degree and the associated felony murder charge. The Court of Appeals decided that the reasoning in Miller should apply to this case.
The Court of Appeals held that kidnapping in the first degree is a legally cognizable crime based on Miller and the parallel constructions of the penal laws at issue in each case. In Miller, the Court held that under N.Y. Penal Law section 160.05, the mental state required to commit the core crime (robbery) attached to the harm flowing from it, permitting strict liability for any resulting harms. In the instant case, the Court reasoned that the statute at issue, N.Y. Penal Law section 135.25, paralleled the statute in Miller because in both as the extent of harm flowing from the crime increases, so too does the degree of the crime. For the crime of kidnapping, like robbery, the culpable mental state attaches from the fact of attempted abduction. Thus the death of the victim is only an aggravating circumstance which raises the degree of the crime. Applying Miller, the Court found that attempted kidnapping in the first degree qualifies as a cognizable crime. Therefore, the Court of Appeals held that Fullan's convictions should be reinstated.
Whether, under the facts of this case, attempted kidnapping in the first degree is a cognizable crime, where the aggravating circumstances which raise the charge to the first degree, were not intended.
Yes. Under Penal Law section 135.25 and People v. Miller 87 N.Y.2d 211 (N.Y. 1995), the underlying facts support a finding that attempted kidnapping in the first degree is a cognizable crime.
The Court of Appeals in Fullan cites the two major and recent Court of Appeals holdings on "attempt to commit" crimes, People v. Miller, 87 N.Y.2d 211 (N.Y. 1995) and People v. Campbell, 72 N.Y.2d 602 (N.Y. 1988).
In Campbell, the Court held that attempted second degree assault is not a crime because no one can attempt an unintended result. In Miller however, the Court held that an unintended result does not require a specific intent. Further, it held that unintended results (i.e. aggravating circumstances) could actually increase the level of culpability on an attempt charge, for example raising it from second degree to first degree, notwithstanding a lack of intent to cause those unintended results.
Effect of Fullan on Current Law
First, the Court of Appeals limited the holding in Campbell to future cases where the statute at issue requires a similar specific intent for each degree of the crime. In other words, if the result component is characterized as part of the core offense, then no attempt is possible. If, however, the result component is characterized as secondary or as an aggravating circumstance (such as in Miller and Fullan) then an attempt charge is legally cognizable. Here, since the core crime of the statute was the abduction of another person, the culpable mental state adheres to that element. The death of the victim, an aggravating circumstance which elevates the crime to attempt in the first degree, need not be intended.
Fullan reinforces the notion initially expressed in Miller that statutory interpretation is the crucial issue in analyzing the legal possibility of attempt charges based on crimes with a result-based, strict liability component. Although the Court of Appeals has outlined a general analytical approach, questions about the applicability of the reasoning in Miller to other individual statutes remain unanswered.
For many other states, attempted kidnapping in the first degree is a cognizable offense. For examples of cases appealing convictions of first degree attempted kidnapping in Connecticut, see Marra v. Commissioner of Correction, 721 A.2d 1237 (Conn. App. Ct., 1998); in Alabama, see Hartley v. State, 598 So.2d 2 (Ala. Ct. Crim. App. 1991), Ex parte Staten, 622 So.2d 1321 (Ala. Sup. Ct. 1992) and Carson v. State, 716 So.2d 247 (Ala. Ct. Crim. App. 1998); in Washington, see State v. Delesdernier, 1997 WL 141200 (Wash. App. Div. 2), and State v. Gatalski, 699 P.2d 804, review denied, 104 Wn.2d 1019 (1985), overruling sub silentio on other grounds; in Oregon see State v. Painter, 833 P.2d 303 (Ore. Ct. App. 1992) and State v. Rinkin, 917 P.2d 1035 (Ore. Ct. App 1996); in Delaware, see Harding v. State, 1991 WL 316936 (Del. Supr. 1991); and in Nevada, see Quiriconi v. State, 616 P.2d 1111 (Nev. Sup. Ct. 1980).
Unlike New York, Alabama requires the intent to inflict physical injury for the offense of attempted kidnapping in the first degree. See Ex parte Staten, 622 So.2d 1321, 1323 (Ala. Sup. Ct. 1992). For an even more stringent intent requirement, Alaska requires a dual intent for an attempted kidnapping conviction. See Alam v. State, 793 P.2d 1081 (Alk. Ct. App. 1990). The prosecution must prove both that the defendant intended an assault and that the defendant intended to restrain the victim beyond what was necessary for the assault. See id.
More similar to New York, Florida requires the intent to commit a felony to support a conviction for an attempted kidnapping. The intent to commit a misdemeanor is not sufficient. See Smith v. State, 687 So.2d 308 (Fla. D. Ct. App. 1997). The Supreme Court of Mississippi has similarly found that the intent to rob is sufficient to satisfy the intent element to support a conviction for attempted kidnapping. See Jenkins v. State, 507 So.2d 89 (Miss. Sup. Ct. 1987)
Interestingly, in Michigan "assault with intent to commit attempted kidnapping" is not a cognizable crime. Michigan courts hold that his charge lacks the specific intent necessary to commit a felony and that it is logically inconsistent for an attempt to satisfy the statute. See People v. Strand, 539 N.W.2d 739 (Mich. Ct. App. 1995).
Colorado similarly does not recognize the offense of "attempted felony murder" because it lacks the requisite culpable mental state. In People v. Meyer, 952 P.2d 774 (Co. App. 1997), the Colorado Court of Appeals found that under the applicable Colorado statute, a charge of criminal attempt requires a culpable mental state. Since the offense of felony murder does not require a culpable intent, the offense of attempted felony murder is a logical impossibility and the Colorado Court of Appeals declined to recognize attempted felony murder as an offense. See id. at 776. Similarly, conspiracy to commit reckless manslaughter is also not a cognizable crime in Colorado. See Palmer v. People, 964 P.2d 524 (Colo. Sup. Ct, 1998).
One state, however, does recognize the offense of attempted felony murder. In Wilson v. State, 614 S.W.2d 663 (Ark. 1981), the defendant's conviction of attempted felony murder was upheld without a showing of an intent to harm.