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PEOPLE v. HERNANDEZ

82 N.Y.2d 309 (1993)

624 N.E.2d 661

604 N.Y.S.2d 524

The People of the State of New York, Respondent, v. David Hernandez, Appellant. The People of the State of New York, Respondent, v. Oswaldo Santana, Appellant.

Court of Appeals of the State of New York.

Decided November 16, 1993.

Attorney(s) appearing for the Case

Feldman and Feldman, Hauppauge (Steven A. Feldman and Arza R. Feldman of counsel), for David Hernandez, appellant.

Barry Stendig, New York City, and Philip L. Weinstein for Oswaldo Santana, appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Paula Milazzo, Amyjane Rettew and Phyllis A. Monroe of counsel), for respondent.

Chief Judge KAYE and Judges TITONE, HANCOCK, JR., BELLACOSA, SMITH and LEVINE concur.

SIMONS, J.

This appeal raises the question whether a conviction of felony murder under Penal Law § 125.25 (3) should be sustained where the homicide victim, a police officer, was shot not by one of the defendants but by a fellow officer during a gun battle following defendants' attempted robbery. Under the circumstances presented, we conclude that it should, and...

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