You are here: / / THE BULLET CASINGS IN EVIDENCE COULD HAVE COME FROM A PISTOL OR A RIFLE;...
,

THE BULLET CASINGS IN EVIDENCE COULD HAVE COME FROM A PISTOL OR A RIFLE; DEFENDANT WAS CHARGED WITH ILLEGAL POSSESSION OF A PISTOL AND THE JURY WAS SO INSTRUCTED; BECAUSE THERE WAS NO BASIS FOR THE JURY TO CONCLUDE DEFENDANT POSSESSED A PISTOL, AS OPPOSED TO A RIFLE, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove defendant possessed a “pistol” as opposed to a “rifle” at the time of the shooting. There was video evidence showing a muzzle flash from the area in the car where defendant was sitting, but the weapon could not be seen. Because the indictment and the jury instructions charged defendant with possession of a “pistol,” the conviction could not stand:

… [T]he indictment and the jury charge specifically narrowed the theory of the case to require the People to establish that defendant possessed a loaded pistol at the time in question. Here, the evidence permitted, at best, mere speculation that the firearm defendant allegedly possessed was a pistol, and not a rifle. Video footage of the shooting shows multiple muzzle flashes indicative of gunfire from the vehicle—it does not directly depict the firearm that is firing the shots. Moreover, the angle of the video does not permit an observer to make any reasonable inferences about what type of firearm is being fired at the relevant time. Nothing in the video establishes that the firearm being fired was a pistol rather than another type of firearm. People v Brumfield, 2025 NY Slip Op 00764, Fourth Dept 2-7-25

Practice Point: The People are held to the theory presented in the indictment and charged to the jury. Since the indictment charged defendant with illegal possession of a pistol and the jury was so charged, the People’s failure to prove the type of firearm defendant possessed required reversal of the conviction.

 

You might also like
New Evidence Demonstrated the Declarant, Not the Defendant, Committed the Murders of Which Defendant Was Convicted—Motion to Vacate Defendants’ Convictions Properly Granted
THE EVIDENCE SUPPORTED HARASSMENT AS A FAMILY OFFENSE BUT DID NOT SUPPORT AGGRAVATED HARASSMENT OR DISORDERLY CONDUCT (FOURTH DEPT).
DEFENDANT WAS NOT COERCED INTO PLEADING GUILTY; THE JUDGE’S DESCRIBING THE POSSIBLE RANGE OF SENTENCING, PLEADING GUILTY TO AVOID A HARSHER SENTENCE, THE JUDGE’S COMMENTING ON THE STRENGTH OF THE PEOPLE’S CASE, AND COUNSEL’S TELLING DEFENDANT THE SENTENCE WOULD LIKELY BE HARSHER AFTER TRIAL, DID NOT AMOUNT TO “COERCION” (FOURTH DEPT).
People Did Not Meet Burden of Going Forward at Suppression Hearing
A STACK OF DRYWALL LEANING AGAINST A WALL AND PARTIALLY BLOCKING A DOORWAY FELL OVER ON PLAINTIFF’S ANKLE AS PLAINTIFF ATTEMPTED TO MOVE IT; THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​
THE $40,000 PAID BY DECEDENT TO HER CAREGIVERS SHORTLY BEFORE DECEDENT ENTERED A NURSING HOME WAS PAYMENT FOR PAST SERVICES RENDERED PURSUANT TO A PERSONAL SERVICE AGREEMENT (PSA); IT WAS NOT AN “UNCOMPENSATED TRANSFER” SUBJECT TO THE 60-MONTH LOOKBACK FOR MEDICAID ELIGIBILITY (FOURTH DEPT). ​
AT THE TIME DEFENDANT RAN AS THE POLICE APPROACHED THERE WAS NO INDICATION THE POLICE WERE GOING TO CITE DEFENDANT FOR TRESPASS OR VIOLATION OF AN OPEN-CONTAINER LAW; DEFENDANT THEREFORE COULD NOT HAVE INTENDED TO OBSTRUCT GOVERNMENTAL ADMINISTRATION BY RUNNING; DEFENDANT’S RUNNING DID NOT PROVIDE PROBABLE CAUSE TO ARREST; THE PEOPLE’S ALTERNATIVE PROBABLE CAUSE ARGUMENT (TRESPASS AND OPEN-CONTAINER VIOLATION), ALTHOUGH PRESENTED TO THE SUPPRESSION COURT, WAS NOT RULED ON AND THEREFORE COULD NOT BE CONSIDERED ON APPEAL (FOURTH DEPT).
JUDGE SHOULD NOT HAVE GRANTED RELIEF WHICH WAS NOT REQUESTED IN THE MOTION PAPERS, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON SOME ISSUES IN THIS SLIP AND FALL CASE (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NYPD PROPERLY REQUIRED TO RELEASE DOCUMENTS RELATING TO ITS USE OF SURVEILLANCE... DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER BASED SOLELY UPON THE FACT...