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Articles Posted in Violent Crimes

Earlier this year, a state appellate court issued an opinion in a New York attempted murder case stemming from a shooting outside an apartment complex. The court’s opinion discussed, among other issues, the defendant’s motion to suppress the identification of the defendant made by the complaining witness. Ultimately, the court concluded that, although there may have been issues with the witnesses’ identification of the defendant, because the witness knew the defendant from before the incident, the defendant’s constitutional rights were not adversely impacted.

The Facts of the Case

According to the court’s opinion, a man was shot outside his apartment complex on September 18, 2011. While at the hospital, the man told detectives that the person who shot him was known as “Chulo.” On two separate occasions, the witness identified the defendant from a single-photo, presented to him by a detective. Two years later, after the defendant’s arrest, the complaining witness identified the defendant again, this time in a double-blind sequential lineup.

Initially, the defendant challenged the procedures used during the double-blind lineup as suggestive. However, the court denied the defendant’s motion. Afterward, the defendant expanded his challenge to include the two previous identifications where the witness was only shown a single photograph. The trial court denied the defendant’s request, relying on the prosecution’s assurance that the witness knew the defendant. In response, the defendant requested a Rodriguez hearing, which involves questioning the witness outside the presence of the jury regarding his familiarity with the defendant. The judge denied the defendant’s request for a Rodriguez hearing, and a jury convicted the defendant, who then appealed.

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Recently, a state appellate court issued a written opinion in a New York murder case involving the defendant’s challenge to the trial court’s substitution of a member of the jury. Specifically, the defendant claimed that the court failed to follow the proper procedure when determining the sitting juror’s unavailability.

The Facts of the Case

According to the court’s opinion, the defendant called 911 stating that he shot his brother. The defendant’s brother later died from his injuries, and the defendant was charged with murder and related charges.

The case proceeded to trial, and on the ninth day of trial, one of the jurors was absent. The juror explained that she had an important medical appointment for a family member. The court did not officially conduct a hearing into the juror’s absence and, without formally stating that the court was ordering the substitution, the court proceeded with an alternate juror. The court explained that it believed the juror mentioned the appointment during jury selection, however, that turned out not to be the case.

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When the government brings criminal charges against a defendant,  that person may have one or more defenses against the crimes charged. In the case of a New York assault crime or assault related charges,  one of the most common defenses is self-defense which in New York is the defense of justification.  Self defense may also apply to many Murder or Manslaughter charges.

In New York, self-defense is a defense. In New York if a defense is raised the prosecutor has the obligation to disprove that defense beyond a reasonable doubt.  Justification, or self-defense is a type of defense in which a defendant claims he committed the acts that would otherwise constitute the offense, but he should not be found in violation of the statute for some other reason. In the case of self-defense, the defendant claims he committed the charged acts for a justifiable reason – specifically, that he was justified in defending himself or a third person.

The defense of self-defense is discussed in Article 35 of the New York Laws. For example, under section 35.10, the use of force upon someone else which might otherwise make out a crime or offense is justifiable and not criminal if the person uses “physical force upon another person in self-defense or defense of a third person.”

Under the Armed Career Criminals Act (ACCA), federal law provides for enhanced penalties for people convicted of a crime involving a firearm if they have previously been convicted of several “violent felonies.” New York has similar laws that enhance penalties for persistent violent felony offenders and discretionary persistent felony offenders.  Recently, the U.S. Supreme Court agreed to hear a case in which the court will be required to explain what constitutes a “violent felony” under the ACCA. The case is important to New York criminal defendants because it will define what counts as a predicate offense under the ACCA, which could have significant repercussions for a person’s sentence.

The case involves a defendant who was convicted for possession of ammunition. At sentencing, the prosecution presented evidence that the defendant had previously been convicted of five offenses:  a 1974 robbery, a 1982 robbery, a 1983 attempted burglary, a 1986 burglary, and a 1994 robbery. The prosecution argued that each of the previous offenses qualified as violent felonies under the ACCA, and it sought a mandatory sentence on the current case of at least 15 years. If the defendant did not have three qualifying offenses, the maximum sentence that he could receive would have been 10 years. However, the trial court agreed with the prosecution, sentencing the defendant to 15 years.

After the U.S. Supreme Court held that part of the ACCA was unconstitutional, the defendant filed a petition, claiming that several of his previous convictions no longer qualified as “violent felonies.” The prosecution agreed that the 1983 conviction for attempted burglary was no longer a qualifying offense, but it argued that the remaining convictions still qualified under the ACCA. The court disagreed, finding that only two of the defendant’s robbery convictions qualified, and it sentenced him to 88 months.

Earlier this month, a state appellate court issued a written opinion in a New York homicide case discussing the obligation that the prosecution has to disclose evidence to the defense. Ultimately, the court reversed the defendant’s murder conviction because it found that the prosecutions’ failure to provide video evidence undermined confidence in the jury’s verdict.

According to the court’s opinion, the defendant was convicted of murder. At the defendant’s trial, several eyewitnesses testified to seeing the defendant in the area immediately before the shooting. One witness identified the defendant as the shooter, but admitted that she only had a brief view of the side of the shooter’s face. The second witness saw the defendant and the victim in the vicinity of the shooting, but lost sight of the two men about a minute before the shooting. The third witness knew both the defendant and the victim, and testified that the defendant ran up to the victim, began arguing with him, and then shot him. The third witness had pending robbery charges against him, and was offered a deal in exchange for his testimony.

In his closing, defense counsel argued that there should have been a video of the shooting, given that it occurred outside an apartment building that had surveillance cameras visible. In his closing, the prosecutor noted that detectives were able to obtain video footage from nearby, and argued that it was “common sense” that if video footage of the apartment complex was available, it would have been presented.

New York criminal defendants enjoy many important constitutional rights, one of which is the right to a jury drawn from a cross-section of society. In the 1986 United States Supreme Court case, Batson v. Kentucky, the Court determined that the defendant was deprived of his constitutional rights when the prosecution struck all black potential jurors from the jury panel, resulting in an all-white jury.

Since then, the Court has made it clear the prosecutors cannot use a potential juror’s race as a decision in whether to accept or reject that juror. In its most recent case discussing race in the jury-selection process, the Court again affirmed the principle that race should not be a consideration when selecting a jury.

This case involved a black man who was previously tried five times for the murder of four furniture store employees, three of whom were white. In the first three trials, the case either resulted in a mistrial based on the prosecution’s race-based jury-selection techniques or the jury’s verdict was reversed on appeal based on prosecutorial misconduct. The fourth and fifth trials resulted in hung juries. Thus, this time was the sixth time the state tried the defendant for murder.

In May 2019, a state appellate court issued an opinion in a New York homicide case discussing whether the defendant was entitled to a justification, or self-defense, jury instruction. Ultimately, the court concluded that the evidence presented did not support a justification charge, and it rejected the defendant’s claim to the contrary.

A justification charge informs the jury that it can find the defendant was justified in committing what would otherwise be considered a crime. Justification is a defense to a crime under New York Law.  Specifically, the charge explains that “a person may use physical force [if] he/she reasonably believes it to be necessary to defend himself/herself [or someone else] from what he/she reasonably believes to be the use or imminent use of [unlawful] physical force by such individual.” A justification charge can be especially important in cases involving violent crimes.

According to the court’s opinion, the defendant shot and killed his daughter’s boyfriend after the two were involved in a heated argument. Three witnesses testified at trial. Two of the witnesses testified to only viewing a brief portion of the argument. However, the third witness, a postal employee in the process of delivering mail, caught most of the argument.

New York has one of the most draconian and burdensome knife laws in the Country and as we have reported over almost a decade in this blog many innocent people have been caught up in New York’s knife law maze.  Last week, however, after several prior attempts at changing the law, Governor Cuomo finally signed a law that will change New York’s knife laws.1142076_knife_1

The Problem

As we wrote as early as 2010, the Manhattan District Attorney’s Office made a deal with several retailers in Manhattan, including Home Depot and other major retailers for them to pay a financial penalty and stop selling gravity knives in New York.  The problem was that these knives were being sold by companies who paid only a relatively small financial penalty while citizens, many african-american and latino youths were being arrested and given criminal records for buying these knives which were readily available.  In 2016, we wrote another blog about this problem after the Village Voice wrote an extensive article about it.  According to the Village Voice article, there had been as many as 60,000 arrests for gravity knives in the preceding 10 years which put gravity knives in the top 10 most prosecuted cases.  Village Voice analysis also seemed to indicate that a disproportionate number of African-Americans and Latinos were prosecuted for gravity knives.

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