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ALBANY � An upstate appellate panel has shot down a first-degree murder charge, relying on a recent controversial Court of Appeals opinion that said prosecutors cannot bump a garden variety homicide up to a capital offense simply by alleging a related felony. The ruling by the Appellate Division, Third Department, apparently marks the first time since the Court of Appeals decided People v. Cahill, (NYLJ, Nov. 26, 2003), that a court has dismissed a capital charge on the basis of the opinion. In Cahill, the Court overturned a death sentence and first-degree murder conviction that were based on the theory that the defendant committed an aggravating felony when he entered his wife’s hospital room � technically committing burglary by doing so � – and then killed her. Cahill concluded, to the consternation of several state legislators, that the aggravating felony must involve a separate mens rea, or mindset. In other words, when a person breaks into a house with the intent to kill the occupant, an accompanying burglary cannot elevate the murder to a capital crime because it was only the means through which the homicide was committed. On the other hand, if a person breaks into a home to steal a television and then kills the occupant, the burglary may serve as an aggravating factor because it was a distinct offense. People v. Glanda, 11972/ 12859, decided last week, follows Cahill. The case stemmed from a contract killing in which Jeffrey T. Glanda hired Nicholas Pecararo to kill his estranged wife, Jeanine. Evidence indicated that Messrs. Glanda and Pecararo went into Mrs. Glanda’s house, ambushed her when she came home, shocked her with a stun gun and then poured water down her throat until she was unconscious. Then, according to the prosecution, they placed Mrs. Glanda in her vehicle and sank it in a lake, where she drowned. Mr. Glanda was charged with two counts of first-degree murder. One alleged that he orchestrated a contract killing. The other alleged that the homicide occurred during the commission of another felony, the burglary of her home. The jury rejected a death sentence and instead voted for life without parole on both first-degree murder counts. On appeal, defense counsel Mitchell S. Kessler of Cohoes, Albany County, attacked the verdict on several grounds. He claimed the contract-killing theory was invalid because Mr. Pecararo did not fulfill his part of the agreement to break Mrs. Glanda’s neck. And he relied on Cahill in challenging the first-degree murder count based on the break-in. In an opinion last week, the Third Department said the crime was indeed a contract killing. Even if Mr. Pecararo did not carry out his promise in the agreed upon manner, “there is ample evidence that the defendant and Pecararo jointly planned, prepared for and committed the murder of the victim, and that Pecararo agreed to participate in exchange for $15,000, a new pickup truck and a snowmobile,” the court said through Justice Carl J. Mugglin. However, it said Cahill mandates reversal on the second capital charge. It reduced that conviction to second-degree murder. The opinion came only two weeks after Westchester Supreme Court Justice Janet DiFiore denied a Cahill-based motion to dismiss a capital murder charge. In the Westchester case, People v. Clancy, (NYLJ, March 17, 2004), the defendant was accused of violating an order of protection and entering the home of his wife, whom he allegedly stabbed to death. Justice DiFiore called Cahill “extremely limited in its scope” and case-specific. The Third Department deemed Cahill far more expansive. AG Involvement Also in Glanda, the Third Department addressed another issue of concern in first-degree murder prosecutions; the involvement of the state attorney general. Under Executive Law �63-d, which was enacted along with the death penalty in 1995, local district attorneys are allowed to enlist the assistance of the attorney general in prosecuting capital cases. The aim of the law, according to the Appellate Division, is “to insure that district attorneys were not overmatched by the personnel and resources made available” to the defendant through the death penalty statute. The death penalty law provides for a capital defender office and guarantees the accused adequate representation. The question that arose here was whether the rather informal involvement of the attorney general during the grand jury presentation was authorized. Mr. Kessler contended that the attorney general was improperly involved since there was no specific appointment under Executive Law �63-d. But the Third Department unanimously disagreed. “We conclude that a district attorney need resort to Executive Law �63-d only to request the Attorney General to assist when the full panoply of resources available through that office are needed and are not volunteered,” Justice Mugglin wrote. He was joined by Justices Karen K. Peters, Edward O. Spain, Robert S. Rose and Anthony T. Kane. Lisa A. Drury of the New York State Prosecutors Training Association appeared for the prosecution. The end result of the decision is that Mr. Glanda’s life without parole sentence on one of the two murder charges stands. However, on the other he must be resentenced and faces a maximum penalty of 25 years to life. Mr. Kessler said he will seek leave to the Court of Appeals.

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