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A bank executive accused of breaking into his home and murdering his wife has failed to win a reduction of the first-degree murder charges against him on a motion based on a New York Court of Appeals ruling last fall. The appeals court in November dismissed capital murder charges against a Syracuse man in a case with similar facts. But a trial judge ruled last week that the earlier decision does not affect the case against the banker, Peter Clancy. The decision will be published Monday. In People v. Peter Clancy, Westchester Supreme Court Justice Janet DiFiore issued the pretrial ruling denying Mr. Clancy’s motion to dismiss two counts of first-degree murder � punishable by a maximum of a life sentence without parole � and two counts of second-degree murder. He is scheduled to be tried this spring for the Sept. 9, 2002, death of his estranged wife, Debora Riggs Clancy, the mother of four young children. Westchester District Attorney Jeanine Pirro did not seek the death penalty after Ms. Clancy’s family urged her not to. Mr. Clancy, then a bank vice president, had been directed by an order of protection issued by the Family Court in August 2002 to stay away from the family home in Cortlandt. A few weeks later, he allegedly entered the house by breaking a kitchen window and then killed his wife by stabbing her seven times. Since the revival of New York’s death penalty statute in 1995, a prosecution for first-degree murder must be based on an intentional murder and a specified aggravating factor. The state’s general murder charge, second-degree murder, is punishable by a maximum sentence of 25 years to life in prison. Mr. Clancy was indicted on two counts of first-degree murder. One alleges intentional felony murder in furtherance of the commission of first-degree burglary. The other alleges felony murder in furtherance of second-degree burglary. He was also charged with four counts of second-degree murder, with two counts based on felony murder in furtherance of the two crimes of burglary. Andrew Rubin, Mr. Clancy’s counsel, argued that the Court of Appeals’ November ruling in People v. Cahill (NYLJ , Nov. 26, 2003) required the dismissal of the counts based on the felony murder theory because the Court in Albany stated that first-degree murder requires the underlying alleged felony to have an objective other than the intentional murder. The defendant in that case, James Cahill, was convicted of poisoning his wife in a Syracuse hospital despite orders of protection to keep him away. His breaking into the hospital was the basis of a felony murder allegation, which led to a death sentence voted by a jury. Mr. Cahill convinced the high court that the alleged burglary was merely the act that enabled the intentional murder. A felonious intent independent of the murder itself had not been proven. The Court agreed, vacated the death penalty and remanded for sentencing for second-degree murder. Justice DiFiore, however, said that “the decision in Cahill is extremely limited in its scope and specific to the facts in that case.” She noted that the death penalty was not at issue in Mr. Clancy’s case. Also, his intent was a factual determination to be made by the jury, and only a limited amount of evidence about intent had been made to a grand jury, the judge said. Finally, the prosecution had not relied only on murder as the intended crime in its grand jury presentation, Justice DiFiore said. “A significant portion of the proffered evidence relates to the defendant’s knowledge of the existence of an order of protection and his violation of that order,” she wrote. The evidence presented to the grand jury “indicates that the defendant may have intended to commit more than one crime when he entered the victim’s residence,” the judge added in denying the motion to dismiss the first-degree murder counts. The Court of Appeals specifically declined to address the issue of second-degree felony murder in its Cahill ruling, she said, allowing the second-degree murder charges to stand. Mr. Rubin is with Mancuso, Rubin & Fufidio in White Plains. Assistant District Attorney Robert K. Sauer handled the motion for the prosecution.

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