There are few issues harder as a felony protection lawyer than representing an “empty chair” at trial the place that chair, or, higher said, shopper, is accused of possessing a loaded and disguised “cellular phone” gun in a automobile he’s driving with none passengers. OK, nicely, possibly that’s surmountable, however throw in the truth that the proof earlier than the jury demonstrated that the accused’s DNA was on each the firearm set off and grip, and that he had what police known as a “holster”, issues tick up in issue. Sound insurmountable? Properly, you’d be unsuitable should you stated “Sure”, however that isn’t all Saland Regulation confronted in protection of a shopper standing trial for Legal Possession of a Weapon within the Second Diploma, Penal Regulation 265.03. In reality, there’s far more…
Regardless of prosecutors providing the defendant a possibility at a misdemeanor with a conditional discharge, aka, no jail nor probation, he confronted a 3.5 yr minimal jail sentence and as a lot as 15 years incarceration, our shopper refused the supply. Compounding issues when it comes to reaching a disposition, our shopper, as shared in open court docket, wouldn’t talk with me, his felony protection lawyer. As a substitute, the defendant left throughout jury choice solely to return again one other day to interrupt me as I used to be about to open. Taken off guard, our shopper said in entrance of the jury that he would give his personal opening. Although he didn’t accomplish that, our shopper determined to go away his trial all collectively, alongside together with his witness who was the proprietor of the automobile and bought the gun, leaving the playing cards stacked in opposition to us each to pile up. Left with no protection witnesses, even when it might need been attainable to determine momentary lawful possession if the defendant and firearm proprietor/automobile proprietor testified, all I used to be left with was my cross-examination of the Individuals’s witnesses and summation to persuade the jury that the prosecution didn’t and couldn’t show their case past an affordable doubt.
I can’t delve into the proof introduced on the trial apart from to say as follows: credibility means so much to a jury. To that finish, when an officer, who was not up entrance about his personal conviction for Criminally Negligent Third Diploma Assault the place he broke a Little League official’s nostril and left over 80 staples in his head, minimizes quite a few findings in opposition to him each internally by the NYPD and Civilian Criticism Evaluation Board, he handcuffs prosecutors. Making issues worse, his claims that simply after he conveniently turned off his physique digital camera his elbow struck the middle console contained in the defendant’s automobile earlier than he parked it on the precinct, popping it open to disclose a gun, possible left many scratching their heads and questioning his veracity.
Whenever you mix officers’ credibility, or lack of the identical, by questioning the accuracy of their testimony, the odor of lying (thanks, Decide McAffee) surrounding their purported actions throughout their investigation, their recorded violations of an accused rights on their physique cameras regardless of his repeated requests for counsel (this, together with the search, in some way survived suppression by a previous court docket’s acrobatic evaluation), and their fundamental truthfulness primarily based on their collective disciplinary historical past for illegal automobile searches and coerced “voluntary consent” to go looking an residence, juries start to query the case as an entire. Whether or not which means nullification or giving an extra-hard have a look at proof past an affordable doubt, all that’s wanted is one juror to disagree with the others to upend the Individuals’s case. For proof of this truth, we’d like not look previous this case as a shining instance. After two Allen prices by the Courtroom to ship the break up jury again to deliberate, the 12 fact-finders didn’t get a possibility to return to a verdict. Although I don’t imagine they may accomplish that, the decide granted Saland Regulation’s request for a mistrial.
In the end, what every juror believed and what number of had been for conviction versus acquittal I have no idea, however there are some things which are sure. As was demonstrated on this case, there isn’t any substitute for preparedness, and each the protection and the prosecution had been nicely ready. Second, being adversaries in a courtroom doesn’t imply legal professionals must be adversarial. Each side can advocate with out pointless friction. Lastly, should you focus on the proof and witnesses, and stick with the 4 corners of the indictment and courtroom, exhausting work and diligence will pay dividends. What in the end occurs with this case going ahead, I can not say, however the basis has been laid for a protection if and when the prosecution tries the case once more.
Saland Regulation is a felony protection agency based by Jeremy Saland, a former Manhattan prosecutor. To be taught extra about Legal Possession of a Weapon crimes in New York, together with firearms, knives, brass knuckles, batons, and different per se weapons, comply with the highlighted hyperlinks.