Articles Posted in murder

People v. B.

2018 NY Slip Op 01956

March 22, 2018

A Kings Criminal Lawyer said that, the People move for an order amending the indictment pursuant to the provisions of Section 200.70 of the Criminal Procedure Law. The indictment contains three counts. The first count accuses the defendant of the crime of attempted murder, a Class B felony. The People seek to amend this count by adding the words ‘a police officer in the course of performing his official duties’ after the name of the victim. This would in effect convert the crime to a Class A felony. No amendment is sought for the other counts in the indictment.

A Kings Grand Larceny Lawyer said that, the People seek to amend the overt act numbered 1 to state that ‘the defendant on or about October 19, 1971, in the County of Kings, with intent to cause the death of a police officer in the course of performing his official duties’, instead of that ‘the defendant on or about October 19, 1971, in the County of Kings, with intent to cause the death of a police officer. The crimes charged as recited in the present indictment is a Class B felony (Penal Law 110.05(2)). The addition of the words ‘a police officer in the course of performing his official duties’ is an essential element of the crime to bring it within Penal Law 110.05(1), a Class A arson felony.

A Kings Criminal Lawyer said that, the People assert that such amendment does not change the theory or theories of the prosecution or otherwise tend to prejudice the defendant on the merits. However the defendant strenuously opposes the application claiming that to permit the proposed amendment would be highly prejudicial to him, by charging him with a crime much greater than that charged by the grand jury.

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The outset of a criminal case can be the difference between an acquittal and conviction if a person does not have an attorney present after being arrest or being interrogated. An attorney can save an accused from self-incrimination during the period where an individual is most vulnerable. In the People v Crosby the defendant with an attorney gave a confession which tarnished his chances of an acquittal.

Crosby, the defendant was convicted in the County Court, Nassau County, of murder in the second degree, robbery in the first degree, robbery in the second degree, and criminal possession of weapon in the second degree, and he appealed. The grounds of appeal were that there was no probable cause for the arrest and the confession which he gave should have been inadmissible. The defendant was arrested after the commission of a robbery and shooting where witnesses described the defendant as a black male with purplish pants and jacket with plaid lapel. The Defendant was found lurking in desolate part of railway station sought to evade identification by discarding his coat in the cold of winter, and tried to flee the scene. He was then subjected to full scale arrest when he was handcuffed at gunpoint so that he could be transported to scene of murder. After which he was then taken to the police station read his Miranda Rights and then interrogated about the criminal allegations against him. He later gave a confession which incriminated him in the matter after being read his Miranda rights.

The issue of probable cause for the arrest was examined by assessing the circumstances of his arrest. Probable cause requires, not proof beyond reasonable doubt or evidence sufficient to support conviction, but merely information which would lead reasonable person who possesses same expertise as officer to conclude, under the circumstances, that crime is being or was committed. The police officers did not act arbitrarily in arresting the defendant for the criminal acts but instead acted on the descriptions of eye witness in describing how the three men were dressed and by making a calculated decision in deciding where the defendant and his other accomplice could have gone. The defendant also acted very suspiciously when the officers were observing him in the train station. Additionally, he was identified by the eye witnesses who were there at the scene of the crime. Therefore, the officers had probable cause to arrest the defendant.

A man made an appeal from a judgment convicting him of murder in the second degree and criminal possession of a controlled substance in the fourth degree.

The court found that it was legally sufficient to establish the man’s guilt of murder in the second degree. Moreover, the court is also satisfied that the decision of guilt on that count was not against the weight of the evidence.

Based on records, the prosecution did not present legally sufficient evidence to support the conviction on the charge of criminal possession of a controlled substance in the fourth degree. So, the court therefore vacates the sentence on the said count and the sentence imposed thereon.

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Petitioner was found guilty of a criminal act and has been sentenced to death. He has been in incarceration or on death row for approximately 17 years before the death sentence was supposed to be executed. Consequently, petitioner filed a petition for a writ of certiorari. Petitioner raised the question of whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court denied the petition. Murder was charged.

In a memorandum, another justice of the court agreed and respected the denial of the certiorari. The reasons for and the justice’s opinion is stated as follows:

While the importance and novelty of the question presented by the certiorari petition are sufficient to warrant a review by the Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts.

The criminal defendant appealed from his convictions of first-degree murder and second-degree criminal possession of a weapon. According to the defendant, the court erred in imposing upon him consecutive sentences because he acted with singular intent during one criminal transaction. However, recent Court of Appeals decisions reiterate that the test for determining the legality of consecutive sentences is not whether the criminal intent is one and the same in each crime but whether separate acts have been committed with the requisite criminal intent. Thus, since there was no overlap of statutory elements in the crimes committed by the defendant, the imposition of consecutive sentences was lawful.

The actus reus of the first-degree murder statute is the causing of death of two or more persons with no requirement that it be by shooting, stabbing or any other method employing a weapon, and the actus reus of second-degree criminal weapon possession is possession of a loaded operable firearm with no requirement that, in fact, it be employed in any way, much less lethally. Hence, these are separate and distinct acts.

Since for sentencing purposes a court must focus on the statutory definition of an offense, there is no merit in the defendant’s argument that the People, at trial, intertwined defendant’s intent to use his weapon unlawfully with the fatal shootings of the two victims. It is true that the People, in summation, stated that the defendant possessed a gun and intended to use that gun unlawfully and there’s no doubt about the defendant’s intent since he actually did use the gun unlawfully against two others. However, that does not help the defendant for sentencing purposes. Indeed, the defendant’s argument that the intent component of the weapon-possession charge results in a statutory overlap because the People did not establish an intent separate from the intentional, fatal shootings is precisely the rationale that the Court of Appeals rejected in one case, and most recently in another. In the first case, the Court rejected the argument that a criminal sex act (sodomy) constituted a material element of first-degree falsifying of business records where defendant asserted that the statutory definition of the latter offense included intent to conceal a crime, in this case the sodomy. Similarly, in the other case, the defendant argued that sentences imposed for his burglary and larceny convictions should run concurrently because larceny was the crime that satisfied burglary’s intent requirement. The Court agreed that defendant’s larceny was the only crime that fulfilled the “intent to commit a crime” element of burglary, and that, therefore the two acts, the entering of a dwelling for the sole purpose of stealing, and the actual taking of the property, cannot logically be considered separate and distinct acts. On appeal, the Court of Appeals disagreed. In a particularly instructive ruling, it held, instead, that the crime of burglary was completed when defendant entered each apartment with the intent to commit a crime. The ensuing larceny was a separate crime, perpetrated through defendant’s separate act of stealing property. The holding in the latter case would appear to foreclose the argument that the shootings of the victims were the only crimes that satisfy the intent-to-use-unlawfully element of the weapon possession charge and hence they are not separate and distinct acts. The criminal weapon possession offense is a possessory act, the actus reus of which is complete once the defendant has dominion and control of a weapon. Criminal weapon possession is not a necessary component of first-degree murder.

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In this drug offense, petitioner was a 21 year old heroin addict. On September 18th, two agents of the Sheriff’s Department of Louisiana, accompanied by a paid informant, and encountered petitioner. Aware of petitioner’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to “score a bundle” for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Petitioner telephoned his “connection” (i.e. his supplier), the agents provided the funds to enable him to make the purchase and he left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.

Some months later, a New Orleans Heroin Possession Lawyer said that petitioner was arrested, tried and convicted of distributing heroin. Petitioner testified at trial. He did not deny the facts set forth above, but contended that he was entrapped. He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child. A Drug Crime Lawyer said that petitioner was sentence to life imprisonment without parole for distributing heroin.

The issue in this case is whether petitioner’s sentence is grossly disproportionate to his crime as to contravene the Eighth Amendment’s prohibition of cruel and unusual punishments.