Are Police Officers Automatically Justified When Using Deadly Physical Force?
Criminal prosecutions of New York City Police Officers for the shooting deaths of civilians is not entirely unheard of. One need only look to the not so distant past to recall the prosecutions of police officers involved in shootings, stemming from the shooting deaths of Amadou Diallo, Sean Bell and most recently, Fermin Arzu. The first two civilians were shot by officers that were on duty, while Mr. Arzu was shot and killed in the Bronx by an off duty police officer, Raphael Lora. (Click on http://www.nytimes.com/2009/02/26/nyregion/26cop.html to read about the events of Mr. Arzu’s death).
Mr. Lora’s trial comes after the unsuccessful prosecutions of the officers accused of murdering Amadou Diallo in the Bronx and Sean Bell in Queens and raises a question many civilians have started asking: Are police officers who kill someone automatically justified? By the fact that the Bronx County and Queens County District Attorneys’ offices brought prosecutions for the Diallo and Bell deaths, you can surmise that the answer is no.
Many have come to believe though, by the acquittals in the aforementioned trials that police officers are automatically justified in the shooting deaths of civilians who are either armed or unarmed and will never be found guilty. What is startling is that of the three men killed, not one of them was armed (with a firearm or weapon). What needs to be taken into account is how the defense of justification operates. Justification does not excuse a criminal act, but recognizes the use of force to be privileged under certain circumstances, rendering such conduct entirely lawful. People v. McManus, 67 N.Y.2d 541(1986). The justification defense is codified in New York Penal Law article 35, and throughout the article is the premise that the defendant must have been acting with a reasonable belief that the victim was about to use force on him or a third person to justify the use of physical force. The same standard applies when discussing the use of deadly physical force. Note, however, in the case of the use of deadly physical force, if the defendant can safely retreat without the necessity of using such force the justification defense may not be available. Read the rest of this entry »
How Prosecutors are Complicit in Making a Visit to Your Friend’s Home Illegal
It is far from uncommon that a person drops by their friend’s home only to find out that the friend is not home, or anyone else for that matter, when they arrive. Did you know though, that doing so could lead to your arrest? It can, in some areas of the state, which is unfortunate.
New York, like almost every other state, has trespassing statutes on the books. But what is troubling here in New York is the manner in which certain trespass cases come to light(this posting is not meant to convey that trespassing can never occur). To show by way of example how that scenario above can play out, take into account the facts that form the basis of many criminal complaints in local criminal courts through out New York City.
To charge the A misdemeanor crime of trespass in the second degree, prosecutors allege the following: “Police Officer Smith observed the defendant in the above location, a dwelling, beyond the locked doors of the building and that there were clearly posted signs reading no trespassing. P.O. Smith also states that the defendant could not provide a valid basis for being present at the building.” What is very troubling about that scenario is that the officers arresting people for this crime under these circumstances are doing so in predominantly minority communities. Notwithstanding that a person has a 5th Amendment right to not have to provide a valid basis for being present at the building, prosecutors in charge of handling these cases generally tell defense attorneys that if the defendant knew someone in the building just have the person come to court and explain the relationship. The problem again is that the defendant does not have an obligation to prove his lawful presence, rather the prosecutor has the burden of proving his unlawful presence. Read the rest of this entry »
How Driving Below the Legal BAC Limit Still Leads to Criminal Prosecution
It is probably common knowledge that anyone driving in New York State who has a blood alcohol content (BAC) of .08 of one per centum or more by weight of alcohol in the driver’s blood is guilty of, at a minimum, the crime of Operating a Motor vehicle While Under the Influence of Alcohol, which is a misdemeanor. See, Vehicle and Traffic Law Section 1192(2). But is the driver exposed to a charge of driving while intoxicated while his BAC is less than the legal limit? Strangely, yes. The adage of, “alcohol affects everyone differently,” comes to mind.
The sanctions, offenses and testing procedures are all codified in the VTL, along with what evidentiary value a court should afford the test results. One may think that if he is driving a vehicle and at the time of doing so his BAC was between .05 and .07 that he is not exposed to the misdemeanor crime of Driving While Intoxicated. If that person looked to the VTL for support of that argument, VTL Section 1195(2)(b), he would find comfort in knowing that such a BAC is prima facie evidence that he was not in an intoxicated condition. What is startling though, is that prosecutors routinely attempt to prosecute someone in this circumstance as driving while intoxicated under what is commonly referred to as the “common law” charge of driving while intoxicated. The term stems from the fact that all crimes are codified in New York and evidence to support such charge are not found in the statute but in the practice of proving the defendant’s mental status, coordinational ability, bearing, and emotional status at the time of his arrest were intoxicated by consuming alcohol. So, while motions to dismiss these complaints charging DWI under these scenarios are frequently filed, courts are reluctant to grant them. In so doing, the courts afford prosecutors the opportunity to overcome this “rebuttable presumption of non-intoxication” at trial. Read the rest of this entry »
New York Prosecutors Attempt to Broaden the Definition of Murder
The crime of murder in New York has been codified under Article 125 of the New York Penal Law, and is pretty concise as to what conduct constitutes murder. In fact, the article even covers for circumstances under which a person causes the death of another person while operating a motor vehicle while under the influence of alcohol or drugs, as laid out in NYPL Section 125.12, Vehicular Manslaughter in Second Degree. That section has been amended by the legislature to make it easier to prosecute defendants who kill someone while driving under the influence. In the past the prosecution had to prove that not only was the defendant intoxicated while driving but also was acting in a reckless manner. The statute now removes the need to prove the reckless element.
This statutory construct is now being ignored by prosecutors in New York as they have attempted to broaden the crime of murder in the second degree to include scenarios as the one discussed above, as well as other scenarios, by morphing the concept and definition of depraved indifference murder. Increasingly, prosecutors are taking cases of vehicular manslaughter and acts of negligence and trying to argue that the defendants are guilty of depraved indifference murder, found in PL Section 125.25 (2). Read the rest of this entry »
Does the Second Amendment Protect New Yorkers?
While the debate has been long lasting and divisive amongst many, one thing is clear when it comes to the Second Amendment to the United States Constitution: The United States Supreme Court in District of Columbia v. Heller, 128 S.Ct. 2783 (2008) has not given New Yorkers seeking the desire to carry firearms without restriction much shelter.
The New York Penal Law criminalizes the possession of a firearm, ranging from an A misdemeanor to as serious as a C Violent felony(in 2006 the legislature amended the felony possession of a weapon to carry mandatory prison). Many have seen the U.S. Supreme Court’s decision in Heller as an opening to being able to carry or possess firearms without restrictions, however, a close reading of the Heller decision and the early interpretations by the New York trial courts seems to dispel that notion. There is no question now that the Second Amendment conferred an individual right to keep and bear arms but it has become quickly apparent that the right is limited. In fact, two recent decisions addressing separate issues-one addressing the constitutionality of the criminal possession of a weapon statute and the other addressing a permit holder’s application to alter his permit to a full carry permit – show that New York courts are not about to recognize the right announced in Heller as a right applicable to New Yorkers as a fundamental right. Read the rest of this entry »
Shoplifting in New York has Civil Ramifications
What many individuals may not know is that there are not only criminal penalties lurking for allegedly stealing from a retailer but also a civil penalty. In New York, retailers are able to recover a monetary judgment against a “shoplifter” even if the property is recovered. The authority for this can be found in New York General Obligations Law. So your defense attorney handling the criminal matter should be aware of this and advise you of the consequences, or you should definitely inquire.
