New York Criminal Lawyer Blog
A man was charged with robbery in the first degree and related offenses. The man then filed a motion seeking various forms of pretrial relief. His motion for court inspection of the grand jury minutes is granted and his motion for release of the grand jury minutes is denied.
A New York Criminal Lawyer said the evidence presented to the grand jury revealed that the man entered a pharmacy wearing what the witness described as a bandana over the lower part of the face and a baseball hat. The said man displayed and clicked what a looked like gun to the store clerk and demanded to fill the bag with money. The clerk obeyed the demand and the robber fled from the store with the money. Six days after the incident, the clerk identified the man in a police-arranged lineup.
Consequently, the arresting detective was also presented to the grand jury. The detective testified to a statement made by the man after his arrest in which the man admitted that he had entered the pharmacy on the date of the crime wearing a handkerchief over his face. The man further stated that he showed a gun to the clerk behind the counter, clicked it and demanded for money. The man also stated that after receiving the money he fled. With respect to the gun, the man stated it was a small 380, black in color and there were no bullets inside.
The state instructed the grand jury on the elements of the crime of robbery in the first degree and second degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree. A Long Island Criminal Lawyer said the prosecutor’s charge included a reading of the portion of the law defining robbery in the first degree that sets forth an affirmative defense on the matter, that the weapon displayed was either unloaded or inoperable. The filed charges contain each of the submitted crimes, including both robberies in the first and second degrees.
Based on records, the court finds that the evidence was legally sufficient to support the charges of the man with robbery in the first degree and it is dismissing that count for the following reasons. A person is guilty of the offense when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight, he or another participant in the crime displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
Further, as a general rule, whether or not the prosecution must present evidence in its possession which supports a justification or affirmative defense or otherwise charge a grand jury regarding such defense where there is evidence before the grand jury to support it depends on whether the defense is exculpatory or merely justifying. The evidence of an exculpatory defense must be presented and the jury charged on the law concerning that defense while a mitigating defense is not needed.
Apparently, the court ordered that the count four of the indictment charging the man with criminal possession of a weapon in the fourth degree is dismissed. The man’s motion to cover up physical evidence is granted to the extent that a hearing is ordered. Further, the man’s motion to cover up identification testimony is granted and his motion to cover up evidence of statements made to law enforcement personnel is granted also to the extent that a hearing is ordered. Whether or not identification and/or statement evidence are the product of unlawful custody will be determined at the hearing. Lastly, the man’s Sandoval hearing application will be determined immediately prior to trial.
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