New York Criminal Lawyer Blog
A fur store employee was present when the store was robbed by two-armed man. According to the employee’s statement, he and his employer were forced into the sales vault, handcuffed, and taped, and one of the gunmen hit him in the head with a gun. The employee was able to free himself and ran to the street, but the two robbers got away. Upon his return to the store, several police officers were on the scene. The man’s employer indicated that one of the robbers had left a gun on the bottom of the fur rack, and his employee saw it. A New York Drug Crime Lawyer said that according to the employee’s statement, the police officer picked up the gun, put it on the desk, and the gun went off. The employee’s previous statement states that he did not see the gun being picked up and was only aware that it had been moved after he was shot. He turned to the location from where the bullet had traveled and saw the smoking gun on the desk, with the police officer holding it. The employee also claims that the police officer hit him and apologized.
The police officer testified that she had received firearms training as part of her police academy training and every year thereafter she received re-qualifying training. A New York Drug Possession Lawyer said she testified as to past experiences handling guns at scenes of crimes and unloading her weapon. She was assigned to evidence collection on the day of the gun crime. At the scene, she was instructed to pick up the weapon to determine its type and she took a couple of photographs of the gun before she picked it up with her left hand on the barrel and her right hand on the butt. She could not tell if the slide had been pulled back and did not know if there was a safety. She held it with her finger, placed it evenly on the table and did not place it pointed in any particular position. When she placed it on the desk, the gun went off though she did not touch the trigger and did not know why the gun fired. The alleged gun crime victim was treated for tinnitus.
The employee filed a notice of claim upon the State alleging negligence and personal injuries. He alleged that he was carelessly and negligently shot by an unknown female police officer acting with the scope of her duties, and that the State and the City Police Department had negligently hired, trained, and supervised the officer, and should have known she was unfit to perform her duties. The employee commenced an action by filing summons and verified complaint.
A Nassau County Drug Possession Lawyer said that according to the Police Department’s supervisor in charge, the department records show a handgun was vouchered and categorized as investigatory. The gun was held for five months when it was delivered to the warehouse for disposal. The records show that the gun was destroyed three months after it was disposed.
The Police Department gunsmith who tested the gun testified the gun had already been tested in the ballistics lab and have been fired four times. It was found to be operable. He conducted various tests, including trying to reproduce the events that caused the gun to discharge. When he completed his assessment, the gun was returned to the unit handling the overall investigation. The gunsmith found that the gun had a light trigger pull off and it discharged inappropriately. When asked whether he could render an opinion to a reasonable degree of firearm certainty as to the cause of the discharge, he stated that the gun’s sear was defective and did not sufficiently hold the hammer in position which would result in a discharge if there was impact to the weapon. He noted that the gun was likely dropped to the floor which may have caused the hammer and sear to shift and thus would not have required a lot of impact for it to go off. He could not determine whether the gun being dropped on the floor as distinguished to its being placed on the table was the proximate cause of its discharge. He said that placing the gun gently on the table would not cause it to discharge. He stated it was possible that an examination of the weapon might assist in determining what would be the proximate cause.
The employee moves to preclude the State and the City Police Department from presenting any evidence at trial regarding the testing or condition of the gun. The gun was destroyed more than two years after he filed his notice of claim and more than a year and a half after commencing his lawsuit. He argues that he is severely prejudiced because it was never made available for independent testing.
Given that the employee is severely hindered in prosecuting his claim because the gun which shot him is no longer in existence, although it was in the City’s possession and destroyed more than a year and a half after the action was commenced, the employee’s motion to preclude testimony and evidence concerning the condition of the gun is granted.
The employee seeks production of copies and transcripts of all tape recordings of interviews of all police and non-police witnesses related to the subject incident and a copy of the Final Report concerning the subject incident. He also seeks to produce authorization to obtain the police officer’s medical records for the date of the incident, and the training materials for handling of guns at crime scenes or for recovery of guns at crime scenes.
The State and the City Police are directed to produce tapes and transcripts only of eyewitnesses to the events. A Queens Drug Possession Lawyer said that the transcripts are to be stamped and shall be produced within 60 days of the date of entry of this decision and order. The branch of the employee’s motion seeking to produce an unedited copy of the Final Report is denied.
The State and the City Police are to provide an authorization within 10 days of entry of the decision and order for the release of the police officer’s visit to the Hospital and to arrange for these records to be produced to the court for review to determine if they contain information as to statements recording what the police officer said as to the way the accident causing her injury occurred.
The State and the City Police counsel’s has agreed to direct a further search for police training materials. As noted, the employee seeks the training materials addressing the handling and recovery of guns at crime scenes. However, his attorney’s reply affirmation asks not only for these materials but also a witness to be deposed on the limited issue of training provided to the Police Department Officers and members of the Crime Scene Recovery Unit. If no materials are found, then they must produce an individual with knowledge who undertook the search for the training materials. The employee request for a witness is denied as it was not part of the initial relief requested in his motion. The State and the City Police are directed to search diligently and produce any pertinent training materials within 45 days of the date of entry of the decision and order. If no materials are found, they shall produce an affidavit signed by the person or persons who undertook the search within the same 45-day period and shall detail the qualifications of any person who undertook the search, provide a detailed description of the reasonable efforts used to locate and produce the materials, including the date, time, and place of each search, and a meaningful explanation as to why such materials are not available or do not exist.
Negligence of one person can cause serious harm to others. The Nassau County Criminal Lawyer can work to make sure that whoever mishandled the weapon that caused you hurt would be dealt with properly.