IDAHO STATE POLICE NEWS RELEASE - generated by our News Release List Server
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IDAHO STATE POLICE NEWS RELEASE
District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000
Fax (208) 324-7897
For Immediate Release: 09/18/2013 8:00 p.m.
Please direct questions to the District Office
On Wednesday, September 18, 2013, at approximately 5 p.m. the Idaho State Police investigated a three vehicle injury crash on U.S. Highway 93 at mile post 57, in Jerome County.
A line of vehicles headed north on U.S. Highway 93 were slowing down for a vehicle that was turning left on to 200 S. Jodene Hollingshead, 58, of Dietrich, driving a 2011 Dodge Durango, failed to stop in time for the slowing traffic. Hollingshead hit the back of a 2008 Ford F150 pickup, driven by Richard P. Pruneau, 51, of Shoshone. Pruneau's vehicle struck the rear of a 2001 GMC Sonoma Pickup driven by Kenneth R. Miller, 55, of Jerome.
The drivers of all three vehicles were wearing seatbelts. Pruneau was transported by ground ambulance to St. Luke's Magic Valley Regional Medical Center. The north bound lanes of U.S. Highway 93 were blocked for approximately an hour and twenty minutes.
This crash is under investigation by the Idaho State Police.
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Injury Crash In Jerome County
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RSOL (Reform Sex Offender Laws) 2013 Conference
Conference Description:
Advocates and supporters of reforming sex offender laws from throughout the nation converged on its second largest city over the Labor Day holiday weekend to participate in RSOL's sixth national conference, “Justice for All.” From the evening of Thursday, August 29, through the late morning of Sunday, September 1, the City of Angels played host to the living angels of a cause deeply rooted in the hope for justice and constitutional freedom for more than 700,000 American...
[[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]
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ILLINOIS GUN STATUTE DEEMED UNCONSTITUTIONAL!
The Illinois Supreme Court has ruled in People v. Aguilar, 2013 IL 112116 that Illinois’ gun statute (UUW) 720 ILCS 5/24-1.6(A)(1) is unconstitutional in that it violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. As a result, the Cook County States Attorney’s Office is […]
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Mashable: Reddit, Civil Liberties Groups Renew Push for Email Privacy
Mashable: Reddit, Civil Liberties Groups Renew Push for Email Privacy by Lorenzo Franceschi-Bicchierai:
[...] Read more!
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CT: A subpoena for defendant’s medical records did not violate HIPAA or the Fourth Amendment
A subpoena for defendant’s medical records did not violate HIPAA or the Fourth Amendment. An overbroad subpoena can be quashed, but this one wasn’t. State v. Williams, 2013 Conn. App. LEXIS 465 (September 24, 2013):
[...] Read more!
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On the Media: "Tracking Your Steps"
On the Media: Tracking Your Steps:
[...] Read more!
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Keeping Us Safe
There were always those of us who didn't buy into it. Naysayers, doubters, questioners. You know, the ones the FBI kept tabs on.Of course, there was cause. Because, as Cernovich says, "Everything I was ever told was a lie." And the biggest of the lies, the most potent, the one they still trot out every day and every chance, wasTRUST US.All in caps. Because they want us to understand. They'll be telling the truth. They'll be getting it right. We'll all be fine. Even what they don't tell us. We know, it backs up what they do.Except, of course, it's nonsense.NSA's spying is all aboveboard. Nope.FISA warrants are based on honest and accurate information? Nope.Saddam had weapons of mass destruction? Nope.Gulf of Tonkin incident? Nope.And then - well, then there's the one about how it's all OK because nothing can go wrong. Nothing, you know, like at Chernobyl, or Fukushima. But that was there. And Three Mile Island? Only people like me would doubt. Since they said we were fine. And we could trust them. Because . . .Well, because they said so. And they were the leaders of the US of A who always knew best and wouldn't do anything that would put us at risk.Of course, there was that time we dropped a couple of bombs on North Carolina. Three days after Kennedy was inaugurated.The story from AP.Two hydrogen bombs were accidentally dropped over Goldsboro, North Carolina on Jan. 24, 1961 after a B-52 bomber broke up in flight. One of the bombs apparently acted as if it was being armed and fired — its parachute opened and trigger mechanisms engaged.Parker F. Jones at the Sandia National Laboratories analyzed the accident in a document headed “How I learned to mistrust the H-Bomb.”“The MK39 Mod 2 bomb did not possess adequate safety for the airborne-alert role in the B-52,” he wrote. When the B-52 disintegrates in the air it is likely to release the bombs in “a near normal fashion,” he wrote, calling the safety mechanisms to prevent accidental arming “not complex enough.”The document said the bomb had four safety mechanisms, one of which is not effective in the air. When the aircraft broke up, two others were rendered ineffective.“One simple, dynamo-technology, low voltage switch stood between the United States and a major catastrophe!” Jones wrote, adding that it could have been “bad news — in spades” if the switch had shorted.One little switch. One little fucking switch.There were, it seems,at least 700 “significant” accidents and incidents involving 1,250 nuclear weapons were recorded between 1950 and 1968.Since 1968? Oh, you can be sure it's been fine. All problems solved. All safe. No worries. Everything got fixed after 1968. Oh, wait. No, they just haven't declassified the results for after then.Which means we don't know shit about where they accidentally dropped a few bombs last week. Or where they'll be dropped next week.Feeling better?
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Victims’ Dilemma: 911 Calls Can Bring Eviction
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Police Officer Can Investigate a Person To Check His/Her Welfare in Florida
Normally, for a police officer to stop or detain a person in Florida, the officer needs consent from the person or specific evidence that the person is involved in criminal activity. However, there are exceptions to the search and seizure laws, and one of them involves a situation where it appears to the police officer that a person's welfare may be in danger. This often occurs when a person is asleep in the driver's seat of a vehicle. The police officer will normally anticipate a DUI arrest in this situation, but he/she can use the welfare check exception as a reason to further investigate when the presence of alcohol and/or drugs are initially not apparent. In these cases, if the police officer reasonably believes the person may be at risk or need medical attention, the police officer can take steps to assist the person or investigate further to determine if there is in fact some kind of health risk or medical emergency. And if the police officer discovers a crime while doing this welfare check, then the officer can investigate that crime and make an arrest.
In a case near Jacksonville, Florida, a police officer was patrolling a mall parking lot and saw a vehicle parked behind one of the businesses where customers do not normally park. The officer approached the vehicle and noticed the defendant squatted down in the vehicle. The vehicle was running. The police officer knocked on the window and told the defendant to roll the window down. When the defendant complied, the police officer saw a bag of marijuana in the vehicle and arrested the defendant for possession of marijuana.
The criminal defense lawyer filed a motion to suppress arguing that the police officer did not have the legal authority to order the defendant to roll down his window so he could see into the vehicle. The criminal defense attorney argued that the police officer had no evidence that the defendant was involved in any criminal activity when he ordered the defendant to roll down his window. However, the court disagreed. The court found that the police officer had a legitimate reason to have the defendant roll down the window to make sure there was no medical problem. Since the police officer discovered the marijuana as soon as the window was rolled down, according to the police officer, he was within his rights to investigate the marijuana and make the arrest for possession of marijuana.
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ID: Arrest of parole violator did not end PO's ability to search his place
Defendant’s arrest on a PV warrant did not terminate his parole agreement and make it so he could not have his apartment searched under the parole agreement that he was subject to searches. His liberty was terminated, but not his parole supervision. State v. Ellis, 2013 Ida. App. LEXIS 74 (September 19, 2013):
[...] Read more!
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Mark Howard Womack of Greenacres, Florida Arrested for Criminal Mischief
Mark Howard Womack of Greenacres, Florida was arrested Tuesday after he was accused of pursuing and assaulting Drewell Peralta during a road rage incident, news sources report. Womack, 36, was booked into the Palm Beach County Jail on charges of criminal mischief, burglary, and battery. A judge ordered that Womack be held on $19,000 bail bond. It is unclear whether Womack has obtained a criminal defense lawyer.
According to reports, the incident occurred sometime Monday on South 57th Avenue in Greenacres. Peralta was turning his Nissan Altima onto South 57th Avenue when he first encountered Womack, reports say. Womack, who was allegedly speeding, apparently narrowly missed crashing into Peralta's car. It is not clear what street Peralta was turning from, nor is it known who had the legal right of way.
Upset by the near miss, Womack allegedly turned around, followed Peralta's car to the intersection of South 57th Avenue and Dubbin Drive East, and swerved, forcing Peralta onto the shoulder of the street. After the two vehicles stopped, Womack allegedly approached Peralta's car on foot and hit Peralta through the driver's side window numerous times, landing at least one punch on Peralta's face. Peralta attempted to open his door, but Womack kicked it shut, reports say. The kick caused an estimated $500 in damage to the vehicle.
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Alain P. Sears of Palm Beach Gardens, Florida Arrested for Grand Theft
Alain P. Sears of Palm Beach Gardens, Florida was arrested Monday after she allegedly stole a bracelet worth over $40,000 from a jewelry store, news sources report. Sears, 46, was booked into the Palm Beach County Jail on charges of larceny over $20,000 and grand theft over $300. She has since been released on bail bond. It is unclear whether she has hired a lawyer.
According to reports, the incident occurred on August 20 at the Tamara Comolli jewelry store on Worth Avenue in Palm Beach. Sunshine Henle, the store's manager, reportedly said Sears came into the store that day and was interested in viewing turquoise jewelry. "[Sears] was very rushed," Henle apparently said. "[She said] had an appointment at Saks and told me not to worry, this is how she shops." Based on reports, Henle had to look online and in the store's brochure to find some of the pieces Sears inquired about. It is unclear whether Sears purchased anything.
It was not until the following day that Henle noticed that the store's priciest piece, a turquoise bracelet that cost $40,490, was nowhere to be found, sources say. Henle reportedly contacted police and turned over the store's surveillance video fro, the previous day. Police put together a photo lineup of several women, including Sears, sources say. Henle reportedly identified Sears in the picture lineup.
Police arrested Sears on Monday. It is unclear whether they were able to recover the allegedly stolen bracelet, nor is it known whether Sears admitted to the theft.
Sears was not the only South Florida woman accused of larceny recently. Earlier this month, Boynton Beach resident Deirdre Kimberly Barron was apprehended after she allegedly stole more than a dozen checks from her boss, cashing them for around $28,700, sources report. Barron, 31, was taken to the Palm Beach County Jail on charges of larceny and fraud. She has since posted $24,000 bail and been released. It is unclear whether she obtained legal aid.
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LA5: SW for house includes car in driveway with out-of-state LPN
Officers with a search warrant for a house could search any car on the premises. One was a car with out-of-state plates with defendant sitting in the driveway. State v. Williams, 2013 La. App. LEXIS 1874 (La. App. 5 Cir. September 18, 2013).
Defendant’s parking his car in front of a business driveway was reason for the officer to stop and inquire. Defendant was found DUI. State v. Weese, 2013 Ohio App. LEXIS 4215 (10th Dist. September 19, 2013).*
In a post-conviction hearing for failure to pursue a motion to suppress because defendant was an overnight guest, the hearing court’s finding that defendant was not a guest was supported by the evidence, and defense counsel was thus not ineffective. Majors v. State, 2013 Tenn. Crim. App. LEXIS 794 (September 18, 2013).*
Defense counsel was not ineffective for not arguing that South Carolina law would have prohibited his recorded jail call there from coming into evidence. He did argue Florida law on that issue, which if anything, is more protective of rights, applied, and the defense lost on that issue. There’s no reason to believe South Carolina law would be any better. Jackson v. State, 2013 Fla. LEXIS 2017 (September 19, 2013).*
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ME: Assuming dog sniff of a bus was illegal, defendant's consent to sniff of person was attenuated
Maine and federal drug agents conducted what they called an “administrative inspection” of a Greyhound bus driving between NYC and Bangor that stopped in Portland. Assuming that this so called “inspection” of the bus was illegal [it sounds it to me], defendant was nervous in the bus station and that drew attention to him. He consented to a dog sniff of his person that alerted to his crotch and he agreed to a search in the bathroom rather than having them get a search warrant. He consented to the dog sniff and it was attenuated. The alert gave PC. State v. Ntim, 2013 ME 80, 2013 Me. LEXIS 81 (September 17, 2013)*:
[*P20] Although the bus inspection and Ntim's consent to the dog sniff were in close temporal proximity, we conclude that Ntim's voluntary consent to the dog sniff was sufficiently attenuated from the bus inspection due to the intervening activities of the law enforcement personnel present in the terminal. Additionally, as the court found, Angel's second alert on Ntim constituted sufficient probable cause for the agents to proceed with the search of Ntim's person in the restroom. See Florida v. Harris, 133 S. Ct. 1050, 1056 n.2, 1057, 185 L. Ed. 2d 61 (2013). Thus, even if the police ran afoul of the Fourth Amendment while conducting the warrantless administrative inspection of the bus, the court did not err in denying Ntim's motion to suppress.
This "administrative inspection" excuse to use a drug dog on a Greyhound bus that never crossed the border is ridiculous, and it shows how far the police will go to justify using a police dog when one of them hears of a warrant exception.
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DEFICIENT FIELD SOBRIETY TESTS ARE INADMISSIBLE IN OHIO DUI/OVI CASES
Standardized field sobriety tests (SFSTs) are administered in nearly every DUI/OVI case in Columbus and central Ohio. A previous post in this blog analyzed the standard for admitting the tests as evidence in court: the SFSTS must be administered in substantial compliance with the officers' training manual for the tests to be admissible. A recent case in an Ohio appellate court applied that standard and concluded the tests were not admissible in Middleburg Heights v. Gettings.
In the Gettings case, a trooper stopped the defendant for weaving and observed the "usual trilogy" of signs that the defendant was under the influence: the odor of alcohol, slurred speech, and bloodshot/glassy eyes. The trooper administered a 'condensed' horizontal gaze nystagmus (follow the pen with your eyes) test, then had Gettings get out of the car. The trooper then administered all three standardized field sobriety tests, despite the defendant's knee problems. The trooper arrested the defendant, and the defendant blew over the high-test limit on a breath test. In court, the defendant filed a motion to suppress the field sobriety tests and also argued that the trooper did not have justification to arrest him. The judge overruled both motions.
The appellate court saw things differently. By filing the motion, the defendant put the burden on the prosecution to prove the field sobriety tests were administered in substantial compliance with the SFST manual issued by the National Highway Traffic Safety Administration (NHTSA). At the hearing on the defendant's motion, the prosecutor did not elicit any testimony from the trooper regarding the trooper's training in SFSTs, did not introduce the NHTSA manual as evidence, and did not even ask the trooper any details about how the tests were administered. The prosecutor simply asked the trooper if the tests were performed in compliance with the NHTSA manual, and the trooper said they were.
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Divorce in Utah | Parenting Plan Requirement
The Divorce Lawyers at Arnold & Wadsworth offer a free consultation (30 minutes) concerning Divorce or Paternity cases. Our family law attorneys will educate you on the issues in your case in order to help you make a better decision. Our legal team will make sure your rights are protected and argued in any court [...]
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WEEK THREE NFL 2013
We wanted to post the survivor pool picks as early as possible as most players are choosing Seattle over Jacksonville. Currently we have selected the Broncos over the Raiders, but that could change before 1pm. Coming Monday: Prognosis Negative!Site Feed
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Defendant seeks leave to renew, pursuant to CPL Sec. 2221(e) his motion dated October 4, 2011 to controvert the search warrant.
A Kings Marijuana Possession Lawyer said that, defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor, and one count of Unlawful Possession of Marijuana, a violation. By motion dated June 29, 2012, Defendant seeks leave to renew, pursuant to CPL Sec. 2221(e) his motion dated October 4, 2011 to controvert the search warrant. That motion was denied by this Court's order dated November 7, 2011.
A Kings Drug Possession Lawyer said that, as noted in this Court's decision of November 7, 2011, Defendant was arrested on May 18, 2011 after the execution of a search warrant at Apartment 3F of 1782 Bay Ridge Parkway, Brooklyn, New York. Among the items recovered during the search of the premises were 1 zip lock bag of marijuana possession, 1 marijuana cigar, and 1 zip lock bag of cocaine possession residue.
A Kings Criminal Lawyer said that, the Court has reviewed the Court file, which includes Defendant's prior motion, People's response dated October 31, 2011, and the Court's decision, dated November 7, 2011. The Court has also reviewed Defendant's current motion, the People's response dated August 8, 2012, and Defendant's Reply dated August 10, 2012.
The issue in this case is whether defendant’s motion to renew his motion to controvert the search warrant should be granted.
In its prior decision, this Court applied the “two-pronged” test in a 1969, which the New York Court of Appeals adopted in a 1988 case, and found that “the information presented to the issuing court established probable cause for the Justice to issue the search warrant on said date. Further, this Court finds that it was reasonable for the Justice to rely upon Police Officer’s warrant application. The application confirms that the confidential informant exists, was reliable, and had a basis for the knowledge they communicated to the police and the court.”
In seeking renewal of the denial of his initial motion to controvert the search warrant, Defendant relies upon a 2012 case decision. Defendant asserts that “in the said case, a hearing pursuant to People v. Darden was ordered on facts nearly identical to the instant case.” However, save for the fact that the confidential informant did not appear before the Court which issued the search warrant, is easily distinguishable from the instant matter.
In the said case, the Court ordered a hearing to determine whether or not there was probable cause for the issuance of a warrant. The case relies upon the holding of a 1987. There, a Darden hearing was ordered “because the police did not verify that the purchase (of narcotics made by the confidential informant) actually occurred at defendant's apartment, but merely that it came from the same building in which defendant's apartment is located.”
In the previous case, “the informant made two so-called ‘controlled buys' in each of which he or she entered the six-story apartment building in which the target apartment is located and allegedly purchased crack cocaine from an individual in the apartment.” As in the 1987 case, the specific apartment of the purchase is not identified, leading the Court to conclude “that the informant may have obtained the cocaine from another apartment or a public area of the building.” In the instant matter, the specific apartment where the “controlled buys” were made is identified, that being Apartment 3F of 1782 Bay Ridge Parkway, Brooklyn, New York.
Further, in the 1987 case, “the affidavit in support of the warrant stated that the informant was of ‘no known reliability.’ ” In the instant matter, “the confidential informant had previously participated in the issuance and execution of 11 search warrants in Kings County. The execution of 9 of these search warrants led to the recovery of weapons, ammunition, controlled substances, marijuana, paraphernalia, and United States Currency, and led to the arrest and prosecution of at least 10 individuals in Kings County.'
In fact, the case cites to cases more recent than Burks, which hold that a Darden hearing is unnecessary where “the information provided by the confidential informant was corroborated in every relevant respect by the personal observations of the police officers who utilized the informant in conducting' multiple controlled buys.” This line of authority has been consistently followed by the Second Department. Following this line of authority, this Court found that the information received from the confidential informant, which was detailed in Officer Jackson's affidavit, was corroborated “in every relevant respect by the personal observations of the police officers who utilized the informant in conducting' multiple controlled buys.”
This language from this Court's decision of November 7, 2011 should also be emphasized: Courts have found probable cause for the issuance of a search warrant so long as the “information presented the issuing judge is sufficient to support a reasonable belief that evidence of a crime might be found' at the premises and that it was more probable than not that criminal activity was taking place at the place to be searched.” Thus, there is no per se requirement that the issuing Court conduct an examination of the confidential informant before issuing a search warrant based upon information that individual presents to an Officer, who then provides that information to a Court in the form of a sworn affidavit. It should also be noted that the procedure endorsed in Johnson calls for the police to “verify that the purchase actually occurred at defendant's apartment.” To accomplish this, the police would be required to have officer's stationed outside of the drug seller's apartment, watching the confidential informant make contact with the drug seller. It takes very little imagination to see the physical dangers such close police surveillance of a drug transaction would entail for both the police and the confidential informant.
Accordingly, Defendant's motion to renew the denial of his motion to controvert the search warrant pursuant to CPL Article 690, and suppress any evidence recovered pursuant to the search warrant, is hereby denied in its entirety. All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit. This shall constitute the opinion, decision, and order of the Court.
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Penal Law § 125.25(2)
A New York Criminal Lawyer said that, on May 3, 1991, defendant was approached by the drug dealer on West 151st Street in Manhattan. The drug dealer asked defendant to sell him $8 worth of crack. Defendant insisted that the drug dealer wait for another buyer to come along because he did not want to retrieve such a small amount of drugs from his supply. When the drug dealer persisted, defendant threw his $8 on the ground and a fight broke out. During the fight, defendant left to retrieve a semiautomatic gun from an adjacent building while defendant's associate resumed the fight with the drug dealer. When defendant returned with the pistol, the drug dealer fled into the lobby of a nearby apartment building, located at 528 West 151st Street.
A New York Criminal Possession of a Weapon Lawyer said that, a bystander and building resident both testified that they were in the process of trying to unlock the interior door leading in from the lobby when the drug dealer ran into the lobby, bleeding and upset, and asked them to hurry. Moments later, defendant approached the entrance to 528 West 151st Street, stood outside the exterior door of the building, pointed his weapon through a missing windowpane in the door, and fired four rounds into the lobby, and then immediately fled the scene. The building resident escaped unharmed, the bystander suffered a non-lethal gunshot wound to the waist, and the rug dealer died in the hospital as a result of one bullet penetrating his torso. The building resident testified that the lobby was well-lit and she could clearly identify defendant's upper body and face. Four spent .25 caliber shells were recovered from the building lobby.
A New York Gun Crime Lawyer said that, after an initial investigation, detectives were unable to locate defendant for several years. The case was reopened on April 9, 1995, when a former neighborhood resident was arrested for shoplifting. He indicated that he had witnessed a shooting a few years prior on West 151st Street. With his assistance, the detectives located defendant in April 1995. Defendant was charged with, inter alia, twin counts of both intentional and depraved indifference murder. He was acquitted of intentional murder and convicted of one count of depraved indifference murder. On appeal, defendant argues that the only reasonable view of the evidence supports a finding that the “execution-style” killing was clearly intentional, and that there is no set of facts that would indicate that the defendant committed the gun crime with “reckless disregard.” He further asserts that, pursuant to the law at the time, he objected to the trial court's submission to the jury of the depraved indifference count together with the intentional murder count, and that the refusal of the court to withhold the depraved indifference count from the jury deprived him of his state and federal constitutional rights to a fair trial. Hence, defendant argues that the depraved indifference murder count must be dismissed and his conviction reversed.
The issue in this case is whether defendant’s depraved indifference murder count must be dismissed and his conviction be reversed.
As a threshold matter, defendant preserved only his general claim that the trial evidence supported a verdict of intentional murder and not a finding that he committed a gun crime with “reckless disregard.” He did not voice any objection to the court's instructions to the jury on the elements of the crime of depraved indifference murder, and he raises the constitutional aspects of his claim for the first time on appeal. Nor did he assert that depraved indifference is a culpable mental state which is the currently applicable law. Hence, his claim as to the insufficiency of evidence supporting a finding of depraved indifference murder must be evaluated according to the court's charge as given without objection.
This well-established precedent notwithstanding, the dissent contends that defendant need not object to the instructions given to the jury since “logically, a defendant's objection to the submission of an offense to the jury encompasses any instructions given to the panel to enable it to consider such offense.” Of course, the dissent does not cite to any legal authority for this proposition since none exists. However, as recently as last month, three judges of the Court of Appeals rejected an indistinguishable preservation argument.
Consequently, the Register standard, which was the basis of the jury charge in this case, informs our sufficiency analysis and conclusion that the verdict was based on legally sufficient evidence and was not against the weight of the evidence.
According to Penal Law § 125.25(2), a person commits depraved indifference murder when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” The Penal Law further states that one acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk”.
The jury was instructed in light of then-applicable law that the People were required to prove (1) that defendant shot a pistol at the victim thereby creating a grave risk of death to another person; (2) that defendant was aware of this substantial and unjustifiable risk; (3) that defendant consciously disregarded the risk that death would result; (4) that defendant's conscious disregard of this risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; and (5) that the circumstances surrounding defendant's reckless conduct were so brutal, callous, extremely dangerous and inhumane as to demonstrate an attitude of total and utter disregard for the life of endangered persons.
The court finds that the People met their burden. Defendant is responsible for killing one victim, as a result of one of the four bullets penetrating his torso, and injuring another with a second bullet after shooting into a confined space occupied by three people. As the People correctly assert, this is a quintessential example of depraved indifference murder. The evidence supports the reasonable view that, either defendant shot into a group of people not aiming at any one individual in particular, or that he aimed at one individual in an area where others were present.
In this case, the People established that two of defendant's four shots ended up lodged in the wall, and the record indicates that the shots were fired in an erratic and indiscriminate manner which denotes anything but an “execution-style killing.” Thus, defendant's reckless conduct of firing rounds into a small vestibule occupied by three people rises to the level of depraved indifference. The fact that one of the bystanders was shot supports the conclusion that defendant was not acting with intent to cause the victim's death but with a total and utter disregard for the life of either of the bystanders trapped in the vestibule with the intended target, the drug dealer.
Indeed, the testimony suggests that when defendant fired he could have easily singled out his alleged victim in the small vestibule area. Evidence at trial established that the exterior door was not locked and was missing its glass windowpane. Defendant could easily have moved in much closer and taken better aim at a body part that would ensure achieving his intention of killing the drug dealer. He was unarmed as were the two bystanders, and defendant could have ordered the bystander and the building resident to get out of the way. Defendant did not do so.
Moreover, defendant could have chosen not to fire the gun when the drug dealer pulled the bystander in front of him as a shield, or, as reasoned above, he could have moved in closer for a better shot and ordered the bystander to get out of the way. Instead he discharged the gun without any regard as to whom he was shooting. In other words, he appeared indifferent as to whom he might kill. While it is clear that the drug dealer was the object of his anger and of defendant's pursuit, the jury heard no evidence that defendant intended to kill him. The record does not reflect that defendant said anything to that effect or that he declared any intention to kill the victim rather than merely to frighten him off or to make a showing of his control over the situation. Nor did he enter the vestibule after the shooting to make sure that he was dead.
Finally, in direct contraindication of an intentional killing, this is not a case where the killing was done in a one-on-one fashion, at point-blank range, or a case in which the defendant shot the victim once in the chest, approached to within an arm’s length and shot the victim in the face, then shot the victim twice in the back and six more times in the head from six inches away. This type of deliberate and repetitive action is in stark contrast to defendant's action in this case. Hence, nothing on the record warrants setting aside the jury's conclusion that defendant acted with depraved indifference rather than intentionally.
The court has considered the remaining issues raised by the defendant, and find them also to be without merit. The court properly denied defendant's motion to dismiss the indictment, made on the ground of pre-arrest and pre-indictment delay. The delay was satisfactorily explained as the product of investigative difficulties, specifically that the defendant left the jurisdiction after the shootings. Moreover, the defendant did not establish prejudice.
The court also properly exercised its discretion in granting the People's request for a brief delay in disclosing the existence of a newly discovered witness who made a photographic identification of defendant shortly before opening statements. The witness articulated a fear of the defendant and his family which justified a delay so that she could be relocated before her identity was disclosed. Again, the defendant was not prejudiced by the delay, which amounted to a single day. He received a mid-trial Wade hearing, and his claim that the disclosure delay adversely impacted his trial strategy is unsubstantiated.
None of defendant's remaining contentions warrants reversal. The court properly denied defendant's motion to suppress his statement to the police. There is no basis for disturbing the court's credibility determinations, which are supported by the record. Defendant did not preserve his claim that a detective engaged in the functional equivalent of pre- Miranda interrogation, or any of his challenges to the People's summation, and we decline to review them in the interest of justice. Defendant's ineffective assistance of counsel claim is unreviewable on the present, unexpanded record. Finally, we perceive no basis for reducing the sentences.
Accordingly, the court held that the Judgment of the Supreme Court, New York County, rendered December 5, 1995, convicting defendant, after a jury trial, of murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 22 1/2 years to life, 2 1/3 to 7 years and 5 to 15 years, respectively, affirmed.
Under Penal Law § 125.25(2), a person commits depraved indifference murder when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
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In a 1986 case decision, the defendant was charged with the sale and possession of marijuana.
A Kings Drug Possession Lawyer said that, defendant is charged with one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. Pursuant to the Criminal Court complaint, a paralegal with the Kings County...
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