The defendant was indicted for Attempted Murder in the First Degree and other crimes. The defendant filed an omnibus motion requesting, inter alia, dismissal of the charge of Attempted Murder in the First Degree.
A Queens County Criminal lawyer said that the defendant was granted leave to reargue. Defendant claims on reargument that his conduct does not warrant a charge of Attempted Murder because, according to the defendant’s counsel, he “merely” pointed a gun at the officer and did not attempt to fire it.
To the contrary, the defendant’s assaultive behavior and his statement of intent, as discussed below, as well as the totality of the circumstances, supports a finding that there is a reasonable suspicion that the crime charged has been committed, and that the defendant committed said crime. The court therefore reaffirms its previous decision, and upholds the indictment of Attempted Murder in the First Degree.
The purpose of the Grand Jury “is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”. In New York, the Grand Jury remains “the exclusive judge of the facts with respect to any matter before it” CPL 190.25[5] and may indict for an offense only if the evidence spells out a legally sufficient case and reasonable grounds to believe that the defendant committed the offense charged. In order for the Grand Jury to indict a person there must be legally sufficient [evidence] to establish that such person committed such offense and (b) competent and admissible evidence [which] provides reasonable cause to believe that such person committed such offense.”
The evidence sufficient to support an indictment need not rise to the level of preponderance of the evidence, or proof beyond a reasonable doubt. A Grand Jury may indict only if the evidence before it is legally sufficient to establish that the accused committed the offense charged and also provides reasonable cause to believe the accused committed the offense.
Defense counsel asserts that the “mere” pointing of a gun cannot sustain a charge of attempted murder. The defendant argues that this court is required as a matter of precedent to dismiss the attempted murder count of the indictment.
Notwithstanding the fact that this court, as a Second Department court, is not bound by a First Department case, there are significant differences between the jurisprudence and the instant case. In Richardson, the defendant stood eight feet from the complainant shot the pistol in the air once, and then pointed the gun at the complainant, accompanied by a verbal threat. The complainant was then permitted to leave the area unharmed. The incident had occurred in an atmosphere characterized by “horseplay” where the defendant was surrounded by his friends who were laughing at the incident. The Court held this conduct to be insufficient to support a charge of Reckless Endangerment in the First Degree. In that case, the defendant can truly be said to have “only” pointed the gun at the complainant.
The defense is also mistaken in its reliance on People v. Rivera, supra, as that decision does not address the issue of the “mere” pointing of a gun. There is no dispute that the facts of the case certainly demonstrate attempted murder: the defendant repeatedly fired his gun at the victim at a distance of only several feet.
The defense further argues that the Maryland Court of Appeals has held, in an attempted murder case, that the charge cannot be upheld when the record reveals the defendant never attempted to discharge his weapon. Again, the defense argues, the “mere” pointing of a weapon is not enough to sustain the indictment. But the former case has no stare decisis value in this instant case. Moreover, the defense failed to analyze the Maryland statute. The requirements for attempted murder in Maryland may be very different from those in New York.
The facts in the instant case demonstrate that the defendant’s actions are clearly distinguished from those of previous cases and support an indictment of the defendant for Attempted Murder in the First Degree. The Grand Jury testimony clearly demonstrates that the defendant was engaged in assaultive behavior against a New York City Police Officer; that the defendant drew his gun and pointed it at the officer; and that this assaultive behavior occurred immediately prior to a res gestae statement of murderous intent.
The forgoing constitutes sufficient evidence from which the Grand Jury could infer that the defendant planned to and did in fact carry “the project forward within dangerous proximity to the criminal end to be attained.” In a case where the defendant was convicted of Attempted Murder even though the weapon he held to a Housing Officer’s head failed to discharge when he pulled the trigger, the defendant’s conviction was based on the jury’s belief beyond a reasonable doubt that the defendant’s behavior constituted Attempted Murder. That is a higher standard of proof that the People must establish than in the instant case. The standard of proof in a Grand Jury proceeding is “sufficient evidence and reasonable grounds to believe the defendant committed the offense charged.” The prosecution has met this burden. The Grand Jury could legitimately have inferred that it was only the action of the Police Officers that stopped this defendant from pulling the trigger.
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