Criminal Law, Pages 324–328

People v. Hernandez

Court of Appeals of New York, 1993


Defendants tried to rob an undercover state trooper. One was arrested, but the other fled, got cornered outside, and got into a standoff with police. Defendant approached pointing his gun at an officer, the officers opened fire, and one officer's stray bullet hit and killed his fellow cop.

Procedural History:

Both defendants were convicted of felony murder and other charges.


Does felony murder require the felon to have directly killed the victim?


While this court affirmed the dismissal of a similar case 30 years ago based on the statute's requirement of "[t]he killing of a human being," the legislature has since revised this to read "causes the death of a person other than one of the participants." The language "causes the death" was used in both of the prior subdivisions of the law section to include when the defendant does not cause the final, fatal act. It would not make sense for the subdivision to be changed to match them but not have its meaning changed likewise.

The mens rea of the underlying felony is imputed to the participant responsible for the killing. Thus, it depends on whether the felon was acting in the furtherance of his crime at that time. It still must proximately caused, so criminal liability will not be extended unreasonably. This is what the legislature has chosen, so the courts are bound thereby.

Here, it was highly foreseeable that defendant approaching an officer with a gun could cause a gun battle resulting in someone's death. It is implausible for the defendants to claim otherwise.


No, felony murder can include any death caused in furtherance of a felony. Affirmed.