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Cop see shots fired from mini-van

The defendant is appealing an order that was made in the County Court of Chemung County. The defendant was convicted for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Case Background
While on duty in a marked police car, the officer saw a light skinned male wearing a white sweatshirt and a light colored hat lean out of the front passenger side window of a minivan and fire five or six shots from a semiautomatic hand gun at a Jeep that was in front of the minivan.

The officer reported the incident and followed the minivan. After a short distance, the minivan pulled over and a man jumped out of the passenger side door and fled by foot across a parking lot. The van left and the officer pursued the man who was on foot.

The officer lost the suspect for a short while, but then saw him running across a parking lot in an easterly direction toward a building. The building was then surrounded by officers and the defendant was found hiding in the bushes on the side of the building.

The officer immediately identified the suspect as the one who has fired the shots out of the minivan. The defendant was arrested and indicted on one count of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree. A jury trial was held and the defendant was found guilty on all counts and sentenced to an aggregate prison term of 15 years with five years of post-release supervision.

Case Discussion
The defendant is appealing his conviction and wants bail reduction. He contends that the first count of the indictment that charged him with criminal possession of a weapon in the second degree should be dismissed as jurisdictionally defective because the charge did not allege facts that constituted the crime.

The defendant also argues that the second count of the indictment that charged him with criminal possession of a weapon in the third degree should have been dismissed as the subdivision had been repealed before the date of the indictment.

Court Decision
In regard to the first count of the indictment, the court disagrees with the defendant that it should have been dismissed. There were alleged facts in the indictment to support the charges that were made in the first count.

In regard to the second count of the indictment, the court finds merit in the defendant’s argument. The subdivision was repealed before he was indicted and for that reason the conviction on this count should be reversed.

The judgment against the defendant will be modified on the law to reverse the convicted defendant of criminal possession of a weapon in the third degree under the second count of the indictment. The second count is dismissed and the imposed sentence is vacated. The rest of the charges and sentences are affirmed.

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