Whether multiple killings, whose only common denominator is that they were each committed with a firearm, can be considered to be "committed in a similar fashion" pursuant to Penal Law § 125.27(1)(a)(x)(i).
No. The facts of this case are legally insufficient to establish the "committed in a similar fashion" element of the statute.
The defendant was charged in a 22-count indictment for an array of criminal activities, including the intentional murders of four people who were shot in the head in separate incidents over a period of about a year.
This appeal concerned first degree murder charges pursuant to Penal Law § 125.27(1)(a)(xi) which imposes criminal liability on anyone who "intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan."
The County Court dismissed these counts concluding that the evidence was insufficient to support a charge pursuant to the above statute. The Appellate Division affirmed. Here, the Court of Appeals affirmed, but departed from the County Court's conclusion that the case law provided a template for the definition of the term "in a similar fashion."
The Court here held that, while the phrase "in a similar fashion" does not have a well-settled legal meaning, it is clear that the Legislature and the Governor intended it to include serial killings. Beyond that, however, the Court declined to set a prospective applied particularization of the term. Similarity, according to the Court, is not a term that lends itself to definite resolution. To provide a "calculus of 'similarity'", the Court reasoned, would ignore the relative nature of the term and its contextual considerations.
Here, the common denominator of these crimes was that each victim was murdered by a firearm. The Court determined that the killings were not sufficiently similar to establish the "similar fashion" element of the statute.