You are here: / / THE MURDER TOOK PLACE ON NOVEMBER 20; DEFENDANT WAS ARRESTED FOR POSSESSION...
,

THE MURDER TOOK PLACE ON NOVEMBER 20; DEFENDANT WAS ARRESTED FOR POSSESSION OF A WEAPON ON NOVEMBER 21 AND INDICTED ON THAT CHARGE ALONE; SUBSEQUENTLY, BASED ON FORENSIC EVIDENCE (BALLISTIC AND DNA), DEFENDANT WAS SEPARATELY INDICTED FOR MURDER COMMITTED WITH THE SAME WEAPON ON NOVEMBER 20; THE MAJORITY CONCLUDED DEFENDANT WAS PROPERLY INDICTED SEPARATELY BECAUSE THE TWO OFFENSES WERE NOT PART OF “THE SAME CRIMINAL TRANSACTION” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, affirming the Appellate Division, determined defendant was properly separately indicted for (1) possession of a weapon and (2) using that weapon to commit murder. Criminal Procedure Law 40.40(2) prohibits separate indictments for joinable offenses. The majority concluded that the possession-of-a-weapon was not part of the “same criminal transaction” as the murder:

Defendant contends that County Court properly dismissed the murder indictment under CPL 40.40 (2) and, as relevant here, argues that the charges were part of the same criminal transaction because there was no break in possession between her use of the weapon in the murder on November 20, 2021 and her possession of the weapon the next day, November 21. The prosecution responds that the passage of time between defendant’s completion of the homicide on November 20 and her subsequent apprehension on November 21 while in possession of the firearm used to commit the offense separates the criminal acts into different criminal incidents, allowing separate prosecution of the possession and the murder charges. The prosecution has the better argument. We conclude that the Appellate Division properly denied defendant’s motion to dismiss and reinstated the murder indictment. People v Harris, 2026 NY Slip Op 03260, CtApp 5-26-26

Practice Point: Here criminal possession of a weapon on November 21 and murder using that same weapon on November 20 were deemed offenses which were not part of the same criminal transaction. Therefore the two offenses were properly indicted separately. The separate indictments did not violate the prohibition of separate indictments for joinable offenses in CPL 40.40(2).

 

You might also like
The People Were Required to Give Pre-Trial Notice of an Out-of-Court Identification of Defendant by Officer Viewing the Controlled Buy from Across the Street—Identification Was Not So Free From the Risk of Undue Suggestiveness that It Could Be Considered Merely “Confirmatory”—Error Was Harmless In the Face of Overwhelming Evidence
THE PEBBLES ON WHICH PLAINTIFF SLIPPED MET THE CRITERIA FOR A “FOREIGN SUBSTANCE” AND A “SLIPPERY CONDITION” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; THE MECHANICS OF THE 30-DAY COURT-OF-APPEALS “APPEAL CLOCK” EXPLAINED IN THE CONTEXT OF ELECTRONIC FILING (CT APP).
Presumption of Vindictive Sentencing Did Not Apply Here Where Defendant Rejected a Plea Offer with a Sentence of Ten Years Probation and, After Trial, Was Sentenced to 10 to 20 Years in Prison
Class Action Mechanism Is Available Where the Relevant Statute Imposes a Non-Mandatory Penalty and the Penalty Is Waived by the Class
HERE A “CERTIFICATE OF DELINQUENCY” WAS NEVER FILED FOR ANY VIOLATION OF PROBATION BY THE DEFENDANT AND THE PERIOD OF PROBATION EXPIRED WHILE DEFENDANT WAS STILL UNDER THE SUPERVISION OF THE DRUG TREATMENT COURT; WHEN DEFENDANT VIOLATED THE TERMS OF PROBATION AGAIN, PROBATION WAS REVOKED AND DEFENDANT WAS SENTENCED TO INCARCERATION; BECAUSE THE REVOCATION AND SENTENCE TOOK PLACE AFTER THE PERIOD OF PROBATION EXPIRED, THE SENTENCING COURT HAD BEEN STRIPPED OF JURISDICTION (CT APP).
YOGA INSTRUCTORS NOT EMPLOYEES.
Defendant’s Inability to Participate in the Prison Sex Offender Treatment Program Based Upon His Disciplinary Record Should Not Have Been Deemed a “Refusal” to Participate in the Program
Corporation Created by Seneca Nation to Operate a Golf Course Was Not Entitled to Sovereign Immunity—Contractor Hired to Build the Course Can Sue to Foreclose a Mechanic’s Lien

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

ALTHOUGH PLAINTIFF IS A NEW JERSEY RESIDENT WORKING FOR A NONDOMICILIARY EMPLOYER,... THE STENOGRAPHER DELIBERATELY FAILED TO TRANSCRIBE PORTIONS OF THE TRIAL TESTIMONY,...