The defendant has been charged with two counts of criminal possession of a weapon in the second degree and disorderly conduct. A Mapp-Huntley hearing has been held in this case. The testimony that was offered during the hearing was quite different and the court does not find either testimony to be wholly credible. At the end of the hearing each party requested more time to submit post hearing memoranda of law and they both have.
Case Facts
The defendant is appealing a judgment made by the County Court of Tompkins County. The judgment found the defendant guilty of the crime of criminal possession of a weapon in the third degree.
Case Background
The petitioner was arrested and charged with several serious crimes. Some of the charges included attempted criminal possession of drugs in the first degree, kidnapping in the second degree, criminal possession of a weapon and attempted robbery in the first degree.
The petitioner was held without bail and was indicted for all of these crimes. He entered a plea of guilty to criminal possession of drugs in the second degree, a class A felony, and to the weapons charge. The judge promised a sentence of nine years to life on the drug charge and five years as a definite term on the gun charge.
The defendant was charged in Queens County of kidnapping in the first, eight counts, and second degrees; rape in the first degree, two counts; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. Thereafter, the defendant was convicted, after a jury trial, of kidnapping in the first degree, four counts; rape in the first degree, two counts; kidnapping in the second degree; sexual abuse in the first degree, two counts; and criminal possession of a weapon in the second degree. On 15 August 1996, the defendant was sentenced. The defendant appealed the judgment of convictions. According to the defendant, the Court erred by refusing to charge the jury as to the defense of duress and his sentence was excessive. The Appellate Division, Second Department modified the judgment by vacating the conviction of one count of sexual abuse, finding that no evidence pertaining to that count was adduced at trial. Other than that, the Appellate Division affirmed the judgment. The defendant then sought leave to appeal to the Court of Appeals. However, that application for leave was denied. The defendant then moved to vacate his judgment of conviction and argued that he was denied effective assistance of counsel, among other things, because his trial counsel failed to have the serological evidence tested for DNA after the defendant denied any involvement in the rape. On 18 June 2001, the defendant’s motion was denied, and his claims were found procedurally barred pursuant to CPL 440.10 based on the fact that the allegations were in the record, and could have been reviewed on defendant’s direct appeal. The defendant’s claims were found by the court bereft of merit. The defendant then sought leave to appeal the denial of his motion to vacate judgment, and sought a writ of error coram nobis. A sargued by the defendant, his appellate counsel was ineffective for failing to raise on appeal the claims he raised in his motion to vacate. The Appellate Division denied both applications, viz.: defendant’s application for leave to appeal and his application for a writ of error coram nobis.
The defendant, pro se, now moved for an order directing that forensic Deoxyribonucleic Acid (DNA) testing be performed on specific evidence; for an order vacating the judgment of conviction; and to have the defendant produced at any hearing.
A Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered April 6, 1987, convicting him of criminal possession of a weapon in the third degree, escape in the second degree and criminal mischief in the fourth degree, upon a jury verdict of attempted murder in the first degree (three counts), criminal possession of a weapon in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence seized from his person and a statement made by him to law enforcement officials. A source said that, the defendant contends that the People failed to establish his guilt of three separate counts of attempted murder in the first degree.
The issue in this case is whether defendant is guilty of the crimes charged.
Judgment of the Supreme Court convicting the accused, following a jury trial, of manslaughter and sentencing him to an indeterminate term of imprisonment of from six to eighteen years, is reversed on the law and the matter remanded for a new trial.
The accused was indicted for murder in the second degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree as the result of a fatal shooting. The deceased was a physician who had purchased real property located in Bronx County. The accused was the seller of the parcel of land in question, and, following the transaction, the deceased and the accused became good friends. However, the relationship between the two men deteriorated rapidly after the accused first agreed to sell the deceased man’s one-half of a building but subsequently refused to go through with the deal. The deceased man thereupon instituted a lawsuit to compel specific performance, and, when the parties were unable to settle their differences, the matter proceeded to trial and judgment, the outcome of which was that the accused was directed to sell the property to the deceased. The accused filed a notice of appeal and moved for a stay, which was granted on condition that he files a bond and perfect his appeal by a specified date. All additional settlement discussions were unsuccessful, and, finally, on the day before the bond was due, the dispute erupted into violence. The accused and the deceased became embroiled in a heated altercation during which the accused was apparently punched by the deceased and then threatened by him with further physical injury. In response, the accused removed a loaded gun from the desk in his office and followed the accused downstairs to ascertain whether he had left the premises in which the accused man’s printing business was located. The two men exchanged some more words, and the accused fired three shots at the deceased, one of which struck the latter, fracturing his spine resulting to spinal injury and perforating the spinal cord. All efforts to revive the deceased failed.
On March 9, 2003, a robbery occurred at Maggie’s Restaurant, located at 2643 Jerome Avenue in Bronx County, New York. On March 11, the detective investigating the case got a telephone call from the New York County Parole Office. The Parole Office stated that David X was present. The detective then went to the office, arrested Mr. X and gave him his Miranda warning. The detective asked Mr. X if he knew why he was being arrested and then told him it was for the robbery at the restaurant. According to the detective, Mr. X then stated that he was at the scene and participated in the robbery but did not have a gun at the time.
The detective found a pawn shop ticket in Mr. X’s pocket, which he stated was for a necklace that had belonged to one of the restaurant’s customers. The detective and Mr. X went to the pawn shop and retrieved the chain.
M was tried for intentional murder, felony murder, robbery in the first degree and criminal possession of a weapon in the second degree. The robbery charge was dismissed due to lack of evidence. The other counts were then presented to the jury along with an attempted robbery charge, which defense did not object to. A jury found Mr. M not guilt of intentional murder but could not reach a verdict on the other counts. A retrial was held and Mr. M was charged only with felony murder and weapon possession. Mr. M’s defense attorney moved to dismiss the indictment on the claim that double jeopardy had already been attached. This motion was denied and the indictment was amended to include a charge of felony murder with the underlying felony being robbery or attempted robbery. The indictment did not include separate counts for either robbery or attempted robbery. Mr. M was subsequently convicted of both felony murder and the weapons charge. His attorney appealed his conviction to the Supreme Court Appellate Division, Second Department.
The appellate court was charged with determining whether double jeopardy had in fact attached, which would have rendered the second trial for felony murder moot. The court held that the trial judge’s decision to drop the first degree robbery charge did effectively bar further prosecution for that count of the indictment. However, the court also stated that double jeopardy did not apply to the felony murder count since Mr. M was never charged separately with robbery or attempted robbery. Mr. M also challenged the addition of attempted robbery to the indictment as the underlying felony for the murder count. The court did not support this claim and accordingly, opted to uphold his original conviction on murder in the second degree and criminal possession of a weapon in the second degree.
R J was charged with one count of first degree robbery and one count of fourth degree weapon possession. The indictment was based on an incident that occurred on September 22, 1979, in which Mr. J allegedly stole money from a bread delivery man. According to the victim’s statement, Mr. J used a weapon in the commission of the crime.
On November 7, 1979, Mr. J gave separate statements to police and to a Bronx County Assistant District Attorney in which he admitted the robbery but denied the use of either a real or replica gun. Mr. J’s attorney moved for a Huntley hearing and opted for a nonjury trial. The hearing and the nonjury trial were held on March 19, 1980 and March 20, 1980 respectively.
On July 28, 1971, E was convicted in the Bronx County Supreme Court of two counts of murder and felony possession of a weapon. The murder convictions were based on allegations that Mr. D, acting in concert with another person, shot and killed Dolores S and Wilfredo H during the commission of a robbery. Under New York law, robbery is defined as the taking of another person’s property through the use of threats or force. In cases where a weapon is involved, the charge may be elevated to aggravated robbery. Robbery differs from other property crimes, such as burglary, which generally does not involve the use of force against another person.
Following his conviction, Mr. D’s attorney filed an appeal on his behalf, alleging that the jury was never properly instructed as to the elements of robbery and criminal attempt.
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