Articles Posted in Gun Possession

In this Criminal case, the Defense Counsel moved for the dismissal of the Indictment upon the grounds of: Multiplicity, Duplicity, Double Counting; Vagueness and Resulting Insufficiency, and Sufficiency.

A Queens County Criminal attorney said that the Assistant District Attorney opposed such motion and this Court then calendared oral argument. On the same hearing, Defense Counsel served upon the Court a request to adjourn oral argument in order to afford Counsel an opportunity to submit a written reply to the District Attorney’s Memorandum of Law. The Court denied in part and granted in part such request and thereafter, entertained oral argument on the issues hereunder. The Court was in receipt of Defense Counsel’s supplemental reply affirmation in support of the motion to dismiss the indictment.

Defense Counsel alleges that when death is a possible outcome of a criminal prosecution, state and federal law demand a heightened standard of due process at every phase of a capital case, from indictment to appeal. Specifically, Defense alleges that the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment, requires a more stringent standard of due process in capital cases. Defense further contends that the New York State Constitution expands that requirement and includes several provisions which specifically augment protection for a capital-eligible defendant.

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A Queens Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered March 5, 1984, convicting him of murder in the second degree, and robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements made by him to law enforcement authorities.

A Queens Criminal Lawyer said that, on January 28, 1983, the defendant, his brother traveled from their neighborhood in Brooklyn to Liberty Avenue in Queens looking for a store to rob. The defendant was armed with a can of mace and one of his companions was carrying a gun. After checking out several stores, the defendant and his accomplices decided to rob a Clothing Store because the proprietor was an elderly gentleman who they believed would be “easy to take off”.

A Queens Criminal Felony Lawyer said that, after the trio entered the store, the defendant immediately assaulted the victim by spraying him in the face with mace. One of his accomplices then pulled out the gun and announced a stickup. The victim came out from behind a counter and a struggle ensued; defendant’s brother grabbed the man and started choking him. The defendant proceeded to the cash register and emptied its contents while his accomplices continued the fatal struggle with the victim. As he was taking the money out of the cash register, the defendant saw his brother hit the victim in the head with a hammer. The victim’s death was due to asphyxiation by strangulation, and multiple wounds to the head and face inflicted during the course of the robbery. In a videotaped statement the defendant admitted knowing that one of his criminal accomplices was armed with a gun prior to entering the store, and he acknowledged spraying the victim in the face with mace. He also admitted removing money from the cash register as his accomplices continued the fatal assault.

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A Queens Criminal Lawyer said that, while the delay has been extensive, the other factors favor the prosecution. Two bar owners were shot point blank after defendant’s cohort allegedly became enraged over a spilled drink, resulting in second degree murder charges. There was virtually no pretrial incarceration. The defense has not been impaired; to the contrary, defendant has enjoyed significant freedom with no public suspicion attendant upon an untried accusation of crime, and the record does not demonstrate undue prejudice to the defense. Far from giving the People an unfair tactical advantage, the delay here has made the case against defendant more difficult to prove beyond a reasonable doubt. In any event, a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant.

A Queens Criminal Lawyer said that, the Homicide Bureau of the Queens County District Attorney’s Office applied in a written memorandum dated March 25, 1982, for authority to present “the case for Grand Jury consideration of two counts of murder in the second degree. As the foregoing discussion demonstrates, the evidence against defendant at that time was indistinguishable from that against him and only differed from the proof inculpating him in the respect that he was the only one of the three suspects arrested and, following the arrest, put in a lineup and identified as a participant in the shootings by the victim.

The issue in this case is whether the constitutional rights of the defendant have been impaired due to denial of speedy trial.

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A Queens Criminal Lawyer said that, the testimony before the Grand Jury indicated that on February 4, 1986, at about 9:15 P.M. at the Highland Park parking lot in Queens, Police Officer observed a parked 1975 vehicle. The defendant was in the driver’s seat, and the other defendant was in the front passenger seat. The officer approached the vehicle and asked the occupants to exit the vehicle and to produce identification. After the occupants had exited the vehicle, the officer observed a .38 caliber gun, on the floor, partially under the driver’s seat. The gun was seized and the occupants of the car were arrested. Before sending the gun to the police laboratory, the officer noted that it was loaded. The certified ballistics report, submitted as Exhibit 1, indicated that the gun’s serial number had been defaced and that the gun and ammunition were operable.

A Queens Criminal Lawyer said that, the owner of the vehicle, after waiving immunity, testified that the defendant had her permission to drive the car. The owner had reported the car stolen because after defendant had taken the car, she had been unable to locate him, and she became concerned about his welfare. The owner further testified that her late husband, who had died on March 21, 1985, had owned the gun, and that the gun had been in the car, on the floor under the driver’s seat, for approximately one year because she had forgotten about it. Jenkins stated that she had neither shown the gun to defendant nor had she told him about the gun.

A Queens Criminal Possession of a Weapon Lawyer said that, the prosecutor first told the Grand Jurors that they were to consider the same charges against the owner of the vehicle as those to be considered against the defendants. The Grand Jury was then instructed by the prosecutor concerning the applicable law by the recitation of the statutory language of the following provisions of the Penal Law: acting in concert; those subdivisions of the crime of criminal possession of a weapon in the third degree concerning possession of a defaced weapon and possession of a loaded weapon outside a person’s home or place of business; and the presumption of possession of a weapon in an automobile. The prosecutor did not otherwise instruct the Grand Jury concerning the presumption.

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Pursuant to CPLR 3211(a)(7) and/or CPLR 3212, the defendants, by notice of motion dated 15 November 2010, move for an order dismissing plaintiff’s claims against them. This motion is opposed by the plaintiff.

On 21 May 2008, MM and JC, NYPD officers assigned to the prisoner van component of a Street Narcotics unit, were driving in the vicinity of West 121st Street and Eighth Avenue in Manhattan when they saw plaintiff with another individual at the northeast corner. As the two walked north on Eighth Avenue towards West 122nd Street, the officers observed plaintiff twice adjust the right side of his waistband. They thus decided to follow the men as they walked around the block to West 121st Street and Seventh Avenue. Deeming plaintiff’s conduct as indicative of his possession of a firearm, and given what they characterized as a circuitous route the two took in a high- crime area, they decided to stop them.

The officers approached the two and ordered them to stop. MM approached plaintiff’s companion to question him, turning his back to plaintiff, while JC approached plaintiff, frisked him, and removed from his right pants pocket a firearm. MM and JC then arrested plaintiff for criminal possession of a weapon.

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This proceeding is an application by the defendant probationer through the Probation Department, for a limited certificate of relief from disabilities pursuant to Correction Law § 702 which would authorize him to apply for hunting licenses and use long gun solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons.

The defendant has completed his community service with high praise from the office where he had worked and is a first time offender who would otherwise be eligible for a CRD pursuant to Correction Law § 700. He continues to serve his probationary sentence.

This application for a CRD requires the court to consider three federal criminal statutes, contradictory United States Court of Appeals decisions, contradictory New York lower court decisions, and novel issues apparently not decided by any court.

On 22 September 1978, the fifteen year old defendant was arrested and charged with Robbery, Second Degree, P. L. Sec. 160.10, an act for which a fifteen year old may be held criminally responsible. P.L. Secs. 10, 30, as amended Ch. 481, L.1978 pursuant to P.L. Secs. 10, 30, as amended Ch. 481, L.1978.

On 28 September 1978 a preliminary hearing was held. At the conclusion thereof, the court found that there was reasonable cause to believe that the defendant committed the crime of Robbery, Second Degree, while displaying an imitation gun, an armed felony.

Immediately thereafter, the defense renewed its motion for removal of the case in the interests of justice to the Family Court. The prosecutor stated that the District Attorney would not consent to removal of the armed felony and that, therefore, under CPL § 180.75(4)(b), the court had no authority to remove the case and no discretion to make an inquiry respecting removal.

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A Kings Grand Larceny Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered May 16, 1994, convicting him of robbery in the first degree, criminal possession of a weapon in the third degree, and grand larceny in the fourth degree (two counts), upon separate jury verdicts, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

A Kings Criminal Lawyer said that, under Kings County Indictment No. 3098/93, the defendant was charged with multiple crimes arising out of two separate incidents in which he allegedly robbed two different victims on different dates. On March 6, 1993, the defendant allegedly robbed the complainant at knifepoint (hereinafter the first incident), and on March 10, 1993, he allegedly robbed another complainant (hereinafter the second incident). A Kings Robbery Lawyer said that, with respect to the first incident, the defendant was charged with two counts of robbery in the first degree, and one count each of grand larceny in the fourth degree and criminal possession of a weapon in the third degree. With respect to the second incident, he was charged with robbery in the first degree and grand larceny in the fourth degree. The court severed the counts relating to the first incident from the counts related to the second incident, and separate trials were held before different juries. After trial on the first incident, a jury found the defendant guilty of criminal possession of a weapon in the third degree and grand larceny in the fourth degree. After trial on the second incident, a jury found the defendant guilty of robbery in the first degree and grand larceny in the fourth degree. On May 16, 1994, the court sentenced the defendant on all of the convictions arising out of both incidents.

The issue in this case is whether the court erred in convicting defendant of robbery in the first degree and grand larceny in the fourth degree, despite of the ground to suppress the evidence presented against him.

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A Bronx Grand Larceny Lawyer said that, defendant was arrested on December 31, 1986 and charged with grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, reckless endangerment in the first degree, unauthorized use of a vehicle in the third degree, and resisting arrest. He has moved for an order dismissing the action pursuant to CPL 170.30(1)(e) on the ground that he has been denied his statutory speedy trial right under CPL 30.30. The action was commenced on January 1, 1987 when the defendant was arraigned on felony and misdemeanor charges. On January 5, 1987, the People reduced the felony charges to misdemeanors and requested a further adjournment. The People were required to be ready for trial within 90 days of the date of this reduction.

A Bronx Criminal Lawyer said that, on February 3, 1987 the defendant did not appear in court and a warrant was issued for his arrest. The People did not then announce their readiness for trial. On March 11, 1987 the defendant was returned on the warrant and the case was adjourned. On March 16, 1987 the People sought a further adjournment for purposes of obtaining a corroborating affidavit. On March 23, 1987 the prosecution did not have the affidavit and again requested an adjournment in order to secure it. On April 9, 1987 the People again were not ready and sought additional time to procure the corroborating affidavit. The presiding judge adjourned the case until April 22, 1987, indicating on the record of court action: “Adjournment period to be charged under 30.30 CPL.” On April 22, 1987 the People filed a corroborating affidavit and the complaint was converted to information. This motion followed.

A Bronx Grand Larceny Lawyer said that, at no time did the defendant ever waive prosecution by information, and the record is devoid of any indication that he requested or consented to any of the adjournments. Notably, at no point during the period from the reduction of the charges to the filing of the corroborating affidavit–a period of 107 days–did the People ever announce their readiness for trial.

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In this criminal case, a motion to dismiss was filed pursuant to CPL 30.30(1)(a) which requires the court to determine how the Second Department’s decision in a case law affects the calculating of the prosecutor’s speedy trial time. In October 1988, the court dismissed an indictment charging defendant with robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, grand larceny in the fourth degree and criminal possession of a weapon in the fourth degree. The court took this action after finding that the prosecutor had obtained the indictment in a manner that violated CPL 190.75(3).

A Kings County Grand larceny Lawyer said that the prosecutor initially presented evidence establishing that defendant committed a knifepoint robbery. After hearing appropriate legal instructions, the grand jury indicted defendant on one count of robbery in the first degree. Then, before the foreperson filed the indictment, the prosecutor returned to the grand jury, directed it to reopen its deliberations, presented more evidence, and delivered new instructions on robbery in the first degree and several additional crimes. Finding that the prosecutor had no authority to reopen defendant’s case, the court concluded that the grand jury’s decision to consider additional evidence constituted a dismissal of its original vote. The court therefore held that the indictment was void because the prosecutor failed to seek judicial authorization for resubmission.

After dismissing defendant’s indictment, the court granted the People permission to re-present the case to another grand jury. The prosecutor obtained a new indictment identical to the one the court dismissed and filed it approximately 10 months after the criminal action commenced. Defendant moves to dismiss this second indictment claiming that he has been denied a speedy trial. Defendant contends that the prosecutor’s violation of the principles stated in a case, rendered his initial indictment jurisdictionally defective. Consequently, defendant maintains that all the proceedings conducted pursuant to this indictment were void and all delay associated with these proceedings must be charged against the prosecution. The People contend, on the other hand, that much of this delay is excludable.

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