The Zealous Prosecution of New York Gun and Firearm Cases: When an Injury may not be Caused by Criminal Conduct

Everyone is scared of guns. After all, some horrific incidents have corroborated why many lawmakers in New York believe the strict firearm laws of the New York Penal Law are necessary. While there is little doubt that firearms in the wrong hands are overwhelmingly dangerous and laws must be enacted and enforced to protect the public and prevent the misuse of weapons, a blanket fear of firearms does not necessitate over zealous prosecutions. Just as the owner of a lawfully registered out of state firearm can be charged with a felony for attempting to legally check his weapon at a NYC airport (JFK Airport, for example), other individuals may be charged with weapon crimes that really are not consistent with the hyper-technical conduct of the accused.

In People v. Evans, 2013 NY Slip Op 1950 – NY: Appellate Div., 4th Dept. 2013, a judge convicted the defendant for Assault in the Second Degree where the crime was based in the reckless possession of a weapon. There, the gun in question was a saw offed shotgun that accidentally misfired and struck another person. Pursuant to New York Penal Law 120.05(4), it is punishable by as much as a seven years in prison if you “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” The question before the Appellate Court was not whether the possession of the weapon in and of itself was illegal, but whether or not it was used in a reckless manner resulting in the serious physical injury.

The theory supported by the prosecution was that the defendant was reckless because he brought a loaded gun to a public park, he possessed it near others, pointed it at the complainant, had been drinking alcohol and ignored the risk of a misfire. Certainly, if true, all of these factors could potentially support the elements or reckless conduct. Equally important, if true, this defendant needed a swift kick in his ass (whether from his friends, parents, spouse or even his criminal attorney). Fortunately for the defendant, however, as ugly and bad as the allegations appeared to be, the People never met their legal burden.

Whether it was the fact that a firearm was involved in a shooting (an accidental one) or that the ultimate injury was serious, the charge did not fit the crime. Yes, weapons of any kind can alter – and end – one’s life, but potential to cause great harm does not equate to proof beyond a reasonable doubt. In ultimately reversing the conviction for Second Degree Assault and dismissing the indictment, the Appeals Court noted that despite the People’s claims the evidence did not support the theory that the defendant brought the weapon to the park, pointed the firearm at another individual, knew the shotgun was loaded and disregarded the danger of the firearm discharging as he drank alcohol. In fact, according to the only witness who observed the incident, the firearm discharged as soon as the weapon was picked up.

There is nothing overwhelmingly valuable about this legal decision in terms of the law (well, it certainly does assist in ascertaining when one’s conduct becomes reckless in the eyes of the New York Penal Law), but there is a more practical value. First, once a firearm is involved in any case, law enforcement seems to take a heightened approach in the investigation and prosecution. Consider this your notice. While this attitude may be warranted when the firearm is illegally owned in any jurisdiction, defaced or used in an obvious criminal manner, mere involvement of a firearm in an alleged crime should not mean that the accused is guilty of criminal conduct. Second, there is no doubt that staying away from knives, blades, guns and explosives minimizes one’s risk to injury and exposure to prosecution (didn’t mom teach us that?). Arguably, unless you are trained and experienced with these things, you steer clear. Otherwise, at some point you may be making an emergency phone call to a physician or criminal defense attorney.

To learn more about the various degrees of both misdemeanor and felony Assault in New York or New York weapon crimes, follow the highlighted links.

A New York criminal defense firm, Saland Law PC’s criminal lawyers represent clients throughout New York City. Before starting the criminal defense practice, the two founding attorneys served as prosecutors in the Manhattan District Attorney’s Office.

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