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IN THIS “ATTEMPTED CRIMINAL POSSESSION OF A WEAPON” AND “FALSIYFING BUSINESS RECORDS” PROSECUTION, THE PEOPLE DID NOT PROVE DEFENDANT WAS SUBJECT TO A RESTRAINING ORDER ISSUED AFTER A HEARING OF WHICH HE HAD NOTICE AND IN WHICH HE COULD HAVE PARTICIPATED; THEREFORE THE PEOPLE DID NOT PROVE HIS ANSWERING “NO” TO THE QUESTION WHETHER HE WAS SUBJECT TO A RESTRAINING ORDER WAS FALSE; CONVICTIONS REVERSED (THIRD DEPT). ​

The Third Department reversed defendant’s “attempted criminal possession of a weapon” and “falsifying business records” convictions as against the weight of the evidence. Defendant, when attempting to purchase a shotgun, answered “no” to the question whether he was subject to a court order. Although restraining orders were produced by the People, there was no proof any restraining order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” as required by 18 USC 922 (g) (8) (an element of the charged offenses):

… [T]he People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was “prohibited by law” (Penal Law § 265.17 [1]). People v Rock, 2024 NY Slip Op 05162, Third Dept 10-17-24

 

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