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The defendant took the stand and admitted that he was involved in a fight

A police officer on radio motor patrol duty received a radio run that there was a man with a gun at a luncheonette. The officer immediately proceeded to that busy location, where he observed several other police officers speaking with a white female, grey-haired pedestrian.

The officer overheard the woman say that a man was carrying a shopping bag and that he had a gun. The officer noticed a tall man in blue coat and blue jeans carrying a shopping bag who was walking in the vicinity. Upon inquiry, the woman told the officer that it was the man with the blue coat and blue jeans who had the gun. The officer thereupon jumped back into his radio car and followed the man. Shortly thereafter, the officer approached the man, the defendant herein, drew his revolver and called out turn around. The officer told the defendant to put the shopping bag down and raise his hands. The defendant complied with the officer’s request. The officer then lifted the shopping bag, and from its weight, thought that it contained a gun. He opened the shopping bag and observed a vinyl carrying case which was designed to carry a revolver. The officer opened the case and found an unloaded 22 caliber long rifle. The officer then immediately searched the defendant and found a loaded ammunition clip with 10 rounds in the defendant’s right hand coat pocket. The defendant was handcuffed, put in the radio car and brought to the stationhouse.

In granting the defendant’s motion to suppress the gun and the ammunition clip, Criminal Term held that the quantum of information possessed by the police officer rose only to the level of reasonable suspicion and only justified a frisk of the defendant’s person for the officer’s protection and the intrusion by the police officer into the defendant’s shopping bag constituted a search which was constitutionally infirm in view of the absence of probable cause. The Appellate Court disagrees with the reasoning and holding of Criminal Term.

It is beyond dispute that the detailed description of a man with a gun, received by the police officer from the woman pedestrian, rose to the level of reasonable suspicion and gave the police officer the right to frisk the defendant’s person for weapons, in order to protect himself even without any preliminary inquiry.

Although the police officer did not exercise this right, he took an equally proper precautionary measure for his own safety when he lifted, opened and essentially frisked the shopping bag which was in the defendant’s possession at all times and which could have easily contained a gun. Once having properly seized the gun, the police officer had probable cause to search the defendant’s person and seize the ammunition clip.

Accordingly, the order granting the defendant’s motion to suppress must be reversed and the defendant’s motion to suppress must be denied.

In another criminal lawsuit, the defendant and codefendant were charged with participating, along with three other individuals, in a robbery and mugging of two youths on New Year’s Eve. The defendant and his companions were arrested by the police while riding in an automobile in the vicinity of the location where the incident occurred, after being identified as the perpetrators by the two victims. The property identified by the victims as stolen during the incident was recovered from the back of the automobile where the defendant and two other individuals were seated.

The trial court did not inform the jury that, even if they found defendant to be in recent and exclusive possession of the stolen property without presenting a credible explanation therefore they reasonably could draw that the defendant was guilty of participating in the robbery whereby the goods were stolen; or that the defendant was merely guilty of conscious possession of the stolen property.

The defendant took the stand and admitted that he was involved in a fight with the complaining witnesses, but denied participating in a robbery. Under these circumstances, the misstatement of the presumption by the Trial Judge had the impact of improperly undermining the responsibility of the jurors, as the triers of fact, to determine whether the prosecution had sustained its burden to establish that the defendant was guilty of the robbery counts of the indictment beyond a reasonable doubt.

Guns could scare any person. If you are being accused of gun related crime, the Queens County Possession Attorney together with the Queens County Arrest Lawyer can help you face your lawsuit. Stephen Bilkis and Associates can also offer the services of the Queens County Criminal Lawyer anytime you would need one.

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