68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41
On December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx.1 The four youths rode together in the rear portion of the seventh car.2 Two of them, Ramseur and Cabey, carried screwdrivers inside their coats to break into video machine coin boxes.3
Bernhard Goetz boarded the same train at 14th Street in Manhattan and sat in the rear section of that car while carrying an unlicensed .38 caliber pistol loaded with five rounds.4
Canty approached Goetz and said “give me five dollars.”5 Goetz stood up, pulled out his handgun, and fired four shots in rapid succession.6 The first shot hit Canty in the chest.7 The second struck Allen in the back.8 The third went through Ramseur’s arm and into his left side.9 The fourth was fired at Cabey but missed.10
Goetz then fired a fifth shot at Cabey, who was sitting on a bench, and the bullet severed Cabey’s spinal cord.11 Goetz told the conductor that the four youths had tried to rob him.12 Goetz then fled between cars onto the tracks.13
On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire.14 After receiving Miranda warnings, he gave two tape-recorded statements in which he admitted carrying the handgun illegally in New York City for three years.15 Goetz described the incident in detail, stating that he had established a pattern of fire from left to right with the intention to murder the four youths and make them suffer as much as possible.16 Goetz also stated that if he had had more bullets he would have shot them again and again.17
A first Grand Jury in January 1985 indicted Goetz only on three weapons-possession counts and dismissed all charges arising from the shootings.18 After the People obtained an order authorizing resubmission, a second Grand Jury heard testimony from Canty and Ramseur plus four passengers and received the tapes of Goetz’s statements.19 On March 27, 1985, the second Grand Jury returned a ten-count indictment charging four counts of attempted murder, four counts of assault in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree.20
On October 14, 1985, Goetz moved to dismiss the second indictment.21 While the motion was pending, a New York Daily News column reported an interview in which Cabey stated that the other three youths had approached Goetz intending to rob him.22 A police officer informed the prosecutor that Canty had told him at the scene “we were going to rob [Goetz].”23 On January 21, 1986, Criminal Term dismissed all counts of the second indictment except reckless endangerment.24 The Appellate Division affirmed the dismissal.25
Whether the prosecutor’s supplemental charge to the second Grand Jury on the justification defense erroneously introduced an objective element by instructing the grand jurors to consider whether Goetz’s conduct was that of a reasonable man in his situation?26
Penal Law § 35.15 permits the use of deadly physical force only where the actor reasonably believes that another person is using or about to use deadly physical force or committing robbery or other enumerated felonies.27 The statute also requires that such force is necessary to avert the threat.28 It retains an objective element of reasonableness measured by what a reasonable person could have believed under the circumstances.29
No. The prosecutor instructed the grand jurors to consider whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.30 The instruction properly incorporated both the subjective beliefs of Goetz and the objective standard required by the statute as applied to the evidence of the incident on December 22, 1984.31
The prosecutor’s charge correctly stated the law and did not render the Grand Jury proceedings defective.32
Whether the information that came to light while Goetz’s motion to dismiss was pending, including a newspaper column and a police officer’s report regarding statements by Cabey and Canty, required dismissal of the indictment under People v. Pelchat?33
Dismissal under People v. Pelchat is required only when the prosecutor knows that the only evidence before the Grand Jury is false and there is no legally sufficient evidence to support the indictment.34
No. The new information consisted of hearsay statements that conflicted with part of Canty’s testimony but did not involve any recantation.35 Goetz’s own statements to police, together with the testimony of the passengers, provided ample evidence supporting the elements of the crimes charged.36 Unlike in Pelchat, where the prosecutor knew the only evidence before the Grand Jury was false, here there was no basis to conclude that the testimony was perjured or that the indictment lacked support.37
The additional information did not require dismissal of the indictment.38