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.

When one looks back now at the trials of the officers involved in the shooting death of Amadou Diallo, the question becomes how were the officers justified? If you accept the premise that the victim was believed to be holding a firearm (Mr. Diallo was unarmed) and that the officers felt he was not responding to their order to drop the weapon he did not have, any movement by Mr. Diallo would theoretically justify the officers opening fire. What even makes these prosecutions more difficult is that justification is a defense that once raised must be disproven by the prosecution beyond a reasonable doubt, which is in addition to them having to prove all of the elements of the charges beyond a reasonable doubt.

So if one had to guess the outcome of the trial where Mr. Lora is charged in the shooting death of Mr. Fermin Arzu, a safe bet is not guilty: I think that people are not ready to think that a police officer would shoot someone if they did not think that their own life or someone else’s was in jeopardy.

It is a decision that Judge Margaret Clancy will have to make.

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.

What leads to even more confusion amongst practitioners, including prosecutors, is the fact that many of the buildings in which the defendants are generally arrested are subscribers to what is called the Clean Hall Program. This program enables police to enter the private buildings to patrol for “trespassers and other unsavory types.” As a general 4th Amendment principle, police officers can only be upon private premises if there is a permissible basis, and generally patrolling the halls of a private building without the owner’s permission is not a permissible basis. What has really confounded prosecutors is the fact that they believe the Clean Halls program allows the officer encountering the defendant to determine whether the defendant was there lawfully or not. This is the furthest thing from the truth when it comes to the nature of the program. So in short, know that if you enter a Clean Halls building and an officer stops you, asking why you are there you do not have to give a valid basis for your presence and the Clean Halls program does not make the arresting officer the final arbiter of who is unlawfully present.

Now, if only prosecutors could enforce that and get police to stop abusing their arrest powers.

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.

Therefore, what remains is a case where prosecutors must prove that the “intoxication is a greater degree of impairment which is reached when the driver had voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver.” People v. Cruz, 48 N.Y.2d 419.

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).

For example, when a defendant in Nassau County was intoxicated and drove his limousine into oncoming traffic where he collided with another vehicle, killing one of the occupants, he was charged with depraved indifference murder. This prosecution ignores the rationale behind the vehicular homicide statutes and flouts the spirit of the law defining depraved indifference murder. The highest court in the state of New York has consistently stated that depraved indifference murder occurs only in a small number of cases where “the conduct is at least as morally reprehensible as intentional murder.”  People v. Suarez, 6 N.Y.3d 202, 811 N.Y.S.2d 267 (2005).

While getting behind the wheel of a vehicle while drunk is pretty careless, that conduct is already criminally proscribed and should not fall under depraved indifference murder should a death result. Currently, in New York County, a man is accused to have committed depraved indifference murder when he allegedly failed to take anti-seizure medication and passed out while driving a commercial truck and striking dead two pedestrians. Again, while this conduct may be considered negligent, even stupid, one cannot say that he acted with a “cold heart” as the courts have commented when defining depraved indifference murder.

Therefore, until the courts reject these theories of prosecution, defense attorneys may find themselves arguing to juries more about compassion and less about legal principles, while asking them to walk for a brief moment in the defendants’ shoes.

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.

In the Matter of Bastiani, the Court denied the applicant’s application to transform her Residence Permit to an Unrestricted and Full Carry Permit mainly for the same reasons the Court in People v. Albi Abdullah found the possession statute constitutional. Mainly the individual right to bear arms has not been extended to the states as a fundamental right and if it were, a regulatory scheme would be permissible. Therefore, it is doubtful that the gun laws currently in effect in New York, or many other similarly drafted statutes elsewhere, are in danger of running afoul of the Second Amendment’s “protections.”

There is much left for the Supreme Court to address after Heller; Does the right announced in Heller apply to the states? If the right applies to the states as a fundamental right, does it exist without restrictions?  But reading from Heller,  “commentators in courts routinely explain that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…” it seems clear that when and if the questions above get addressed by the Court much of the laws currently in effect in New York will pass constitutional muster. So do not look to the Second Amendment in New York for protection against prosecution for illegal possession of a weapon.