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TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A-BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN. 

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion by Justice Acosta, determined the trial court properly dismissed the count of the indictment which charged possession of a BB gun. Defendant was charged with possession of the BB gun as well as possession of a 9 mm handgun. It was alleged defendant threw both under a car as the police approached. Defendant produced a declaration (against penal interest) by a non-testifying witness (Ramsanany) who claimed (in the declaration) the handgun was his. In rebuttal the People presented a detective (DeLoren) who testified Ramsanany, when confronted, admitted his declaration about owning the handgun was a lie. The dissent argued the BB gun count should have gone to the jury, as it was an integral part of the defense and would not have caused jury confusion. The trial court ruled that the BB gun count could confuse the jury and lead to a compromise verdict:

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FROM THE DISSENT:

I disagree with the majority’s position that submission of the air pistol count “could only confuse” the jury. Indeed, in allowing testimony about Ramsanany’s declaration that he, and not defendant, possessed the 9 millimeter Taurus pistol, the court necessarily found that it did not confuse the issues or mislead the jury  … .

In any event, under the circumstances, submission of the air pistol charge would not have distracted the jury or merely allowed it to reach a verdict based on mercy or compromise; rather, submission of the charge would have helped the jury arrive at a fair verdict if it had credited the defense, a defense supported by defendant’s and Gil’s testimony and Ramsanany’s declaration, as well as the lack of DNA or fingerprint evidence indicating which pistols were in defendant’s possession. Instead, because the court dismissed the air pistol count, the jury had no basis on which to convict defendant of possession of only the air pistol, and not the 9 millimeter Taurus pistol, even if it credited the defense, leaving the jury to convict defendant of a more serious offense or acquit him altogether. This was particularly troubling, given that Ramsanany did not testify at trial. Any claims by the prosecution that Ramsanany was coerced by defendant into assuming criminal responsibility for the air pistol could only have been explored through Detective DeLoren. It seems to me patently unfair to provide Ramsanany’s declaration and DeLoren’s rebuttal to the jury and then essentially tell the jury to forget about that testimony and focus only on the 9 millimeter Taurus pistol. People v Boyd, 2017 NY Slip Op 04809, 1st Dept 6-13-17

 

CRIMINAL LAW (TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/JURY CONFUSION (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/COMPROMISE VERDICT (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)

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