Don’t let the term fool you. Second-degree murder is every bit as serious as first-degree murder. Sure, the sentence may be a little lighter, but it still potentially means that you are going away for a long time.
Even once it’s over, you’ve paid your debt to society and are free, that conviction will follow you everywhere. A murder charge on your record can affect your ability to rent an apartment, your employment, the type of job you can get, and even where you are allowed to live. What they don’t tell you is that even if you don’t get a sentence of life in prison, second-degree murder still carries a life sentence of stigma and exclusion.
It will affect you for the rest of your life.
That is why getting a good, knowledgeable criminal defense attorney is so important.
Overview of Second Degree Murder
Each state or jurisdiction provides its own definition of second-degree murder, but they are all generally fairly similar, meaning that an act of murder meets the qualification of being charged as second-degree murder if:
- The murder was intentional but was not premeditated – The killer did not do any type of planning when carrying out the murder. Even though the killer had intent, they did not plan to murder the victim until the moment that they did so.
- The defendant only intended to cause bodily harm – The defendant did not mean to kill the other person, but only cause them serious bodily harm – but is aware that death can result from their actions.
- The defendant demonstrates an extreme indifference to human life – The defendant exhibited a complete and utter disregard for the possibility that their actions would kill another person.
The victim of the murder does not have to be the intended victim when the murder occurs during the commission of a felony. Even if the murder is an accident, because the defendant was committing a felony and someone was killed, it is still murder.
Additionally, if a person is committing a crime and someone else involved kills another person, the defendant who was involved in the crime but did not kill anyone can still be charged with murder simply because of his or her involvement in the original felony when the murder took place.
In New York, the crime is Murder in the Second Degree while under federal law it is Second Degree Murder.
When Murder Becomes a Federal Crime
Most of the time, murder is prosecuted under the laws of the state where the crime occurred. However, some circumstances give the federal government jurisdiction over an alleged act of murder and that means the case is heard in federal court. These are also typically high-profile cases.
Murders that can fall under the purview of federal courts, like any other crime, are those that occur in special territorial and maritime jurisdiction of the U.S.
These special circumstances may include:
- Where it occurred
- Aboard a ship in US territorial waters
- Aboard an airplane that falls under the jurisdiction of the FAA
- In a national park
- On a military base
- Who was murdered
- Elected officials
- Politically appointed officials
- Federal judge
- Federal law enforcement
- Circumstances surrounding the Murder
- To influence the outcome of a court case
- Related to child rape
- Related to child sex crimes
- During a bank robbery
- How the murder was committed
- Murder for hire
- Murder by mail or wire
Some of the cases involving these factors may still be tried at the state level. When that happens, the defendant will be subject to the laws of that state, including conviction and sentencing.
Federal Second Degree Murder Charges
Federal law defines second-degree murder by first defining first-degree murder and then stating that any other murder is second-degree murder.
(a)Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.
This means that a murder lacking key elements may be charged as second-degree murder. These elements that must not be present, according to federal law, include:
- The killing was willful
- The killing was deliberate
- The killing was malicious
- The killing was premeditated
- The killing occurred while the defendant was committing a felony such as any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children
These factors, either separately or together, be the impetus for a first-degree murder charge. Therefore, when some or all of those features are absent, it could mean a second-degree murder charge.
New York Second Degree Murder Charges
Under New York law there are several factors that can result in a killing being classified as murder in the second degree.
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be; or
(b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide or
2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct that creates a grave risk of death to another person, and thereby causes the death of another person; or
3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or
4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or
5. Being eighteen years old or more, while in the course of committing rape in the first, second, or third-degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.
Penalties for a Federal Second Degree Murder Conviction
Federal law is not exactly specific on the penalties for second-degree murder.
18 U.S. Code § 1111 – Murder
(b)Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
This means that it is up to the federal judge to determine the length of the sentence. A federal second-degree murder conviction typically means a long prison sentence, which could be decades. Rarely is there a light or short sentence for second-degree murder in a federal case.
It is a conviction that is taken very seriously.
Penalties for a Second Degree Murder Conviction in New York
Under New York law, murder in the second degree is a Class A-1 Violent Felony. While murder in the first degree is also a Class A-1 Violent Felony, murder in the second degree does carry a somewhat lesser sentence. However, Class A-1 Violent Felonies still tend to carry the longest sentences. This can include life in prison without parole. The minimum sentence for a Class A-1 felony is 15 to 40 years in prison.
Most Class A-1 felonies in New York have indeterminate sentences, which leaves a lot of discretion to the judges.
Defenses for Second Degree Murder
Just because a person is charged with murder it doesn’t mean that they will be convicted of murder – or any crime. A charge simply means that the prosecution has evidence that makes it probable that the person charged committed the crime.
It is the same with murder in the second degree.
A good criminal law attorney can argue certain defenses, depending on the case, to get the charges dropped, reduced, or win at trial.
Some of the more common defenses for second-degree murder include:
- The defendant acted in self-defense
- The killing was accidental
- The defendant acted by reason of insanity
- The defendant was under extreme emotional disturbance when he or she committed the murder – there was a reasonable explanation or excuse for the disturbance
- The accused was involved in causing or aiding another person to commit suicide and did so without using duress or deception (Statutory – NY)
- The killing was in self-defense
- The killing was in defense of another person
- Mistaken identity – the defendant is not the person who committed the murder
- Illegal search and seizure
- Procedural errors and omissions
If you have been charged with second-degree murder, you probably have some questions. At The Litvak Law Firm, we have answers, and we will stand up for you in the courtroom, fighting to protect your rights. Mr. Litvak has worked on many high-profile cases, including murder cases, and has an impressive track record of impressive results.
If you have been charged with second-degree murder, don’t wait to see how it will turn out because if you are not represented by a professional, experienced criminal defense attorney, your case is unlikely to go well.
Call today at (718) 989-2908 to schedule your free consultation and find out how The Litvak Law firm can help you.