Articles Posted in Gun Possession

On 8 February 1991, an altercation occurred between the defendant and her landlord at the latter’s house where both parties lived. On that date, defendant’s landlord was under arrest by the police and charged in a felony complaint with assaulting the defendant. At her arraignment, defendant’s landlord was assigned Legal Aid counsel and released on her own recognizance. The case was adjourned for Grand Jury action. Shortly thereafter, defendant’s landlord went to the New York City Criminal Court’s Summons Part at 346 Broadway in New York County where a clerk prepared a misdemeanor complaint on her behalf charging defendant with the crimes of Assault in the third degree (Penal Law § 120.00(1)), Criminal Mischief in the fourth degree (PL § 145.00(1)), Menacing (PL § 120.15) and Harassment as a violation (PL § 240.25(5))–all of which was allegedly based on the same February 8th incident for which defendant’s landlord herself had been previously charged.

Next, defendant’s landlord appeared before a judge of the Criminal Court in Kings County, swore to the truth of her complaint and received a summons to serve on defendant to secure her appearance in this Court. The judge who issued the summons for the defendant was unaware that defendant’s landlord had already been arrested for the very same conduct of which she accused defendant. Note that the summons clerk’s intake sheet merely indicates that defendant’s landlord was referred to the summons part by her attorney and that she refused mediation.

The defendant appeared in court with her attorney after having been served with summons and was arraigned. Defendant’s landlord and her attorney were present at the defendant’s arraignment. At arraignment, the court was advised that defendant’s landlord has been indicted by a Kings County grand jury for Assault in the second degree and Criminal Possession of a Weapon in the fourth degree for allegedly assaulting the defendant on 8 February 1991. Since this was the first time the District Attorney’s Office had an opportunity to review the summons initiated case in light of the pending indictment, the court inquired if the People were going to assume prosecution of the defendant. Counsel for defendant’s landlord submitted a motion and affirmation requesting that the District Attorney’s Office not be permitted to dismiss this prosecution and for an adjournment to allow her to move in Supreme Court for the appointment of a special prosecutor.

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A man pleaded guilty to criminal possession of a weapon in the third degree and was sentenced to six months imprisonment concurrent with five years probation.

After three years, the man was arrested for robbery in the first degree and other charges. After a year, he pleaded of guilty to attempted robbery in the second degree and was sentenced as a second violent felony offender to three to six years. The sentence was ordered to run consecutively to an undischarged sentence. He also pleaded guilty to attempted criminal possession of a weapon in the third degree and had been sentenced to two to four years in prison as a second violent felony offender.

After four years, the man was again arrested for attempted murder in the second degree. The following year, he pleaded guilty to attempted criminal possession of a weapon in the third degree. The man was evaluated a persistent violent felony offender and was sentenced to two years to life. The sentence was ordered to run concurrently with the previous undischarged sentences imposed in two different county cases.

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A grand jury heard evidence concerning an incident occurred. After the deliberation, they voted an indictment charging a man with the crime of criminal possession of stolen property in the second degree.

Subsequently, the district attorney re-opened the criminal proceeding. The attorney asked the jury to consider the charges of burglary, grand larceny and criminal mischief in addition to the previously count of criminal possession of stolen property.

There are no further evidence brought out at the initial and second proceeding was presented. In addition, sixteen juror members were present at the initial proceeding of the man but only 14 members attended the second proceeding out of sixteen. There are also no discussion had occurred in the first proceeding concerning the new charges. Robbery was charged.

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On 20 December 1994, a certain person was shot in his apartment on Parkside Avenue, Brooklyn. On 27 December 1994, criminal defendant got arrested and charged with possession of a weapon. During his interview, the arresting officers suspected that he was involved in the 20 December 1994 shooting. Thus, the defendant was indicted for that shooting incident. Defendant then moved to suppress, as the product of his unlawful detention on an unrelated weapons charge, two guns used in the shooting and delivered to the stationhouse by his wife; to suppress the admissions made by him on the additional ground that his withdrawal from heroin, together with police conduct during his lengthy detention, coerced his admissions.

After the court determined that the police acted without probable cause or reasonable suspicion in grabbing the defendant as he walked upon a public street, placing him up against a car and conducting a search which revealed a 9mm firearm, found that two questions remained: whether the recovery of two additional guns with ammunition, brought by the defendant’s wife to the stationhouse where the defendant was detained, as sufficiently attenuated from the primary illegality and whether the defendant’s statements regarding the shooting, given some twenty-three hours following his arrest, were voluntarily made.

Here, the two guns and ammunition brought to the station house by the defendant’s wife were not sufficiently attenuated from the primary illegality and, therefore, must be suppressed.

On 16 December 1983, the County Court of Nassau County rendered judgment convicting a certain defendant of criminal possession of a weapon in the third degree, after a nonjury trial. The defendant appealed from that judgment. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by him to the police. The judgment was affirmed by the Appellate Court.

First, the defendant’s claim that the shotgun recovered by the police at the scene of the criminal act should have been suppressed because the People failed to document the operability of the weapon was not preserved for appellate review. Nonetheless, the Appellate Court still ruled upon its admissibility. It held that the shotgun was admissible in evidence since reasonable assurance of identity and unchanged condition of that weapon existed from the trial testimony of the police officer who identified it as the exact weapon he recovered from the scene of the crime. What’s more, a firearms examiner testified that when he examined the weapon it was operable. Any deficiencies in the chain of custody did not in any way relate to the admissibility of the gun but to the weight that the jury accorded that evidence. This was the same ruling that the court held in the case of People v. Capers.

Second, the hearing court correctly refused to suppress the defendant’s unsolicited, voluntary and spontaneous statement uttered while he was awaiting transfer to a cell. This was also the ruling in the celebrated case of People v. Ferro and the case of People v. Lanahan. Well established is the rule that questioning on the subject of pedigree information is not likely to evoke inculpatory responses and therefore it need not be preceded by Miranda warnings; as held in the cases of People v. Johnson and People v. Rodriguez. Here, aside from seeking pedigree information, the defendant was not subjected to any other type of express questioning or its functional equivalent. Thus, the hearing court’s determination that the defendant’s statement was spontaneously made and therefore admissible should not be disturbed as held in the case of People v. Harrell, in the case of People v. Boyd, and in the case of People v. Tyler. Robbery was not charged.

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On 16 December 1983, the County Court of Nassau County rendered judgment convicting a certain defendant of criminal possession of a weapon in the third degree, after a nonjury trial. The defendant appealed from that judgment. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress a statement made by him to the police. The judgment was affirmed by the Appellate Court. DWI was not the impetus.

First, the defendant’s claim that the shotgun recovered by the police at the scene of the crime should have been suppressed because the People failed to document the operability of the weapon was not preserved for appellate review. Nonetheless, the Appellate Court still ruled upon its admissibility. It held that the shotgun was admissible in evidence since reasonable assurance of identity and unchanged condition of that weapon existed from the trial testimony of the police officer who identified it as the exact weapon he recovered from the scene of the crime. What’s more, a firearms examiner testified that when he examined the weapon it was operable. Any deficiencies in the chain of custody did not in any way relate to the admissibility of the gun but to the weight that the jury accorded that evidence. This was the same ruling that the court held in the case of People v. Capers. Robbery was not involved.

Second, the hearing court correctly refused to suppress the defendant’s unsolicited, voluntary and spontaneous statement uttered while he was awaiting transfer to a cell. This was also the ruling in the celebrated case of People v. Ferro and the case of People v. Lanahan. Well established is the rule that questioning on the subject of pedigree information is not likely to evoke inculpatory responses and therefore it need not be preceded by Miranda warnings; as held in the cases of People v. Johnson and People v. Rodriguez. Here, aside from seeking pedigree information, the defendant was not subjected to any other type of express questioning or its functional equivalent. Thus, the hearing court’s determination that the defendant’s statement was spontaneously made and therefore admissible should not be disturbed as held in the case of People v. Harrell, in the case of People v. Boyd, and in the case of People v. Tyler.

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