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After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree. A new trial is ordered because of the prosecutor’s statements regarding DNA evidence. The weight of the evidence was against the defendant. A gun was found and the defendant confessed. It is important to note, irrespective of the reasons for why it was done, that the prosecutor’s statements are what gives rise to a new trial.

The facts are as follows

On the evening of September 13, 2012, two officers of the Buffalo Police Department were patrolling a high crime area on the east side of the city when they saw a vehicle stop abruptly outside of a house. Defendant exited the vehicle, looked several times at the officers’ patrol car, and walked quickly towards the back of the house. The officers suspected defendant of trespassing and quietly followed him, approaching the house from different directions. They lost sight of defendant for approximately 15 to 30 seconds. Defendant suddenly emerged from behind the house, and one officer began questioning him about his behavior. The other officer reported that he had seen defendant “standing next to” a blue City of Buffalo garbage tote located nearby. When one officer lifted the lid of the garbage tote, defendant dropped his head and said, “oh man.” A loaded gun was inside. Defendant was arrested and confessed to having possessed the gun.

Although the ” Defendant moved to suppress the gun and his statements to the police, arguing that he abandoned the gun in response to unlawful police pursuit and that he was arrested without probable cause,” (id. at p.2), the Court only suppressed the statements, finding that the Police were engaged in observation and not pursuit. While the Court finds that the evidence here is sufficient to support the conviction, the Court finds that the statements made by the prosecutor should result in a new trial. more

A college student’s inappropriate behavior became criminal in class. “Defendant is accused by information of public lewdness (see Penal Law §245.00) on account of an incident that is alleged to have occurred in an accounting class at Hofstra University on September 3, 2014.” Id. at 1. “[A] person is guilty of public lewdness “when he [or she] intentionally exposes the private or intimate parts of his [or her] body in a lewd manner or commits any other lewd act…in a public place.” Id. at 10 (citing Penal Law §245.00(a). The accusatory instrument alleges that a text message was sent by one student to another student, the complaining witness, asking the complaining witness to “touch it” and exposing his erect penis. There were about twenty other students and a teacher in the classroom at the time. Although a private institution, the Court finds little issue in finding a Hofstra classroom a public place.

The standard for sufficiency is as follows:

It is well-settled that an information is sufficient only if it both provides reasonable cause to believe that the person named in it committed the offense charged, and contains sworn, non-hearsay allegations of fact supporting every element of that offense, and that person’s commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353, 611 NYS2d 261 [2d Dept 1994]; People v. Li, 192 Misc2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). An information thus must demonstrate the existence of a prima facie case (People v. Henderson, supra), but the prima-facie-case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (cf. People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v. Henderson, supra), but the court is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Voelker, 172 Misc2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]).

Id.at 9-10 (external quotation marks omitted and internal citations more