New York Criminal Lawyer Blog
A man who owned a bar saw two of his customers having an argument while inside the bar. He went over to them and told them to take their argument outside. The two men left the bar and stayed on the sidewalk just outside the bar and the argument escalated into a very heated argument. One man pushed the other man down. A New York Criminal Lawyer said the man who pushed the other drew a gun from his backside and fired into the crown inside the bar which by then was rubber-necking the argument outside. A patron inside the bar got hit when the ma outside fired into the bar. That man lay seriously wounded on the floor of the Bar.
Unnoticed by the man outside the bar, a police officer on beat patrol heard the commotion and the shots fired. On the other side of the street, as the gunman fired into the bar, the police officer engaged the gunman in a gunfight. A few seconds later, a car pulled up near the gunman and the gunman got inside the car. The police officer gave chase while still firing upon the car.
In the meantime, when the bar keeper and owner of the bar heard that shots were fired by the gunman outside the bar, he went behind the bar and took out his shotgun. When he heard the screeching of the tires on the street, he came out of the bar and stood next to the police officer. He fired his shotgun at the car.
The bar keeper’s shotgun round hit the driver of the speeding car. The driver was a friend and companion of the gunman. The car stopped for a few seconds as the driver who was seriously wounded got out of the car. The car sped off once more when the gunman shifted from the passenger seat to the driver’s seat and he himself drove the car.
The bar keeper fired another shot with his shotgun and he hit a passerby who had approached the car that had stopped. The passerby may have been attempting to help the wounded driver who had stumbled out of the getaway car.
The gunman who sped away was eventually arrested. The man who was shot inside the bar was seriously wounded but he survived. The driver of the getaway car and friend of the gunman was mortally wounded when he was fired upon by the bar keeper. He died in the hospital of his gunshot wounds. The passerby who was also fired upon by the bar keeper also died in the hospital of his gunshot wounds.
The gunman who started it all was charged under one indictment with two counts of attempted murder in the first degree; two counts of assault in the first degree and one charge of criminally carrying a loaded pistol (possession of a weapon).
The gunman was also separately charged in another indictment for two counts of murder in the first degree for the death of the driver of the getaway car and the passerby.
A Westchester County Criminal Lawyer said upon arraignment, the gunman asked for leave of court to inspect the Grand Jury minutes and when this was granted, he filed a motion to set aside the indictment for two counts of murder. He claims that although the death of the driver and the passerby occurred at the time of the commission of a felony (his having shot the man in the bar), the shots that killed the driver and the passerby were not from his loaded gun but from the shotgun of the barkeeper. Thus, he cannot be charged with two counts of murder because he did not commit those murders.
The Court is called upon to determine whether the death of the driver and the passerby from the shotgun wounds sustained by them when they were fired upon by the bar keeper can be charged as murder committed on the occasion of the commission of another felony (attempted murder and assault.
The Court held that the laws of New York require that in order for the accused gunman to be charged with the murder of the driver and the passerby, he himself must have fired the shot that killed them. New York law provides that the murders must have been committed by the person engaged in the commission of or an attempt to commit a felony. Here, although the driver and the passerby were killed on the occasion of the commission of attempted murder and assault, they were not killed by the gunman who was engaged in the commission of a felony. The indictment for two counts of murder in the first degree was dismissed.
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