In this particular matter the defendant has been separately charged and convicted of criminal possession of a weapon in the second degree as a result of incidents that occurred approximately an hour apart. One of the incidents occurred in Bronx County and the other occurred in New York County.
The defendant contends that second degree possession is a continuing crime and that his later New York County conviction must be set aside on double grounds jeopardy.
The charges against the defendant arise from an incident where he went to the apartment of his estranged wife late one night with the intent of killing her because he believed that she was having an affair with his son from a previous marriage.
The police arrived in answer to a call, but before they could stop the defendant he shot his wife three times with a .38 caliber pistol then fled out a window and down a fire escape to his waiting car.
Once the defendant was in his car he headed for his son’s apartment with the intent of shooting him as well. He abandoned this idea before he reached his son’s apartment and decided to return to his own home and kill himself.
The defendant reached his apartment about an hour after the killing to find the police waiting in the hall outside. The officers ordered him to freeze, but he tried to escape and in the process pulled out his gun and aimed it at one of the officers.
Before the defendant could fire a shot the officers shot and wounded him and then placed him under arrest. Ballistics tests revealed that the gun that they had taken from the defendant by the police was the one that he had used to shoot his wife and that he had reloaded it after killing her.
The crimes of second and third degree criminal possession of a weapon are very different. Third degree criminal possession of a weapon is in reference to dominion and control. Second degree criminal possession requires a specific intent.
The defendant was indicted in Bronx County for murder in the second degree, criminal use of a weapon in the second degree and criminal possession of a weapon in the second degree for the shooting of his wife.
While the case was proceeding in Bronx County, the defendant was indicted in New York County for second and third degree criminal possession of a weapon based on his threatened use of the handgun against the police officers at his Manhattan apartment.
The court has reviewed the facts of the case and has determined that the double jeopardy laws do apply in this matter. For this reason, the defendant cannot be prosecuted in New York County for criminal possession of a weapon in the third degree.
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