People State New York v. Theodore Mosher

Appeal from a judgment of the County Court of Albany County, rendered February 1, 1979, upon a verdict convicting defendant of the crimes of murder in the second degree (felony murder) and burglary in the first degree. On July 25, 1978, at about 1:45 a.m., defendant entered a dwelling occupied by Lawrence Murray, Murrays sleeping wife and his three children. An altercation occurred in a bedroom during which defendant struck Murray with a baseball bat causing his death from extensive skull fractures and brain lacerations. Defendant took Mrs. Murrays purse containing a checkbook and identification, and exited through a kitchen window. He forged a check for $300, cashed it at a bank, and was subsequently apprehended. On August 3, 1978, defendant was indicted on four counts by the Grand Jury, charging murder in the second degree (felony murder), murder in the second degree (intentional murder), robbery in the first degree, and burglary in the first degree. Defendant claimed he went to collect $300 for bad marihuana sold him by decedent who admitted him to the house. He urged that an argument over the amount of his refund ensued during which decedent reached for a knife, at which point defendant [81 A.D.2d 684 Page 685]