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A police officer and his partner received a radio transmission


A man spent the evening of Saturday and the early morning hours of the next day in a basement apartment, smoking large quantities of crack cocaine and drinking large quantities of alcohol. As the night progressed, he also kidnapped and robbed at least two individual. After one of the said victims became very agitated, the man allowed him to leave on the condition that he will be back with money. The victim returned with his armed stepson and a friend. The man shot and killed the stepson, firing five rounds at him.

The man was then convicted of felony murder in the second degree, kidnapping in the second degree, robbery in the first degree, criminal possession of a weapon in the second degree, and two counts of criminal possession of a weapon in the third degree. He then filed an appeal, principally arguing that the trial court should have given a justification charge to felony murder.

At trial, a witness testified that at approximately 9:30 P.M., he went to a basement apartment to pick up a woman, whom he had recently met. Immediately upon entering the apartment, an individual whom he had never seen before and whom he identified at trial as the man, placed a gun at his back, searched him, took his money, keys, wallet, and other personal items, and ordered him to sit down. Also, inside the apartment at that time, there were the woman and two men that the witness had never seen before. The man, the woman, and the other individual then drank and did drugs, all of which they purchased with the witness’ money. At no time did the man put away the gun. During that time, the witness heard the man claim that when the drugs ran out, the woman would be the only witness.

Over the next several hours, others arrived in the apartment which the man also robbed. The criminal man did not allow the witness to leave the apartment, and threatened him with consequences if he left or attempted to do so.

At some point, another individual arrived and the man robbed him of money and drugs, and initially forced him to remain in the apartment. Because the said individual became upset, the man allowed him to leave the apartment, but only on the condition that the individual will borrow money from his employer, and return to the apartment.

The individual later returned to the apartment with his stepson and a friend.

The witness testified that an individual, whom he described as a very large kid, entered the basement apartment first, forcibly entering through the apartment door. Another person followed close behind. The witness testified that immediately upon the entry, gunfire began. The witness recalled hearing five or six gunshots and someone stunned him with a stun gun.

The second witness testified that after his friend knocked on the basement door, it opened, and three men ran out. He proceeded to attack one of the men with a stun gun. He then turned toward the basement, looked inside, and saw the lower half of a man sitting in a chair with a gun in his lap. He then heard about three or four gunshots. At that point, he turned and ran up the stairs toward the backyard, but after hearing his name, he turned back and ran into the basement.

He further testified that immediately upon entering the apartment, he saw his friend and the man, wrestling over a gun. He then grabbed the gun from the two men. His friend was lying in the doorway on his face, bleeding apparently from having been shot. He then aimed the gun at the man’s head and tried to pull the trigger, but it jammed. The two renewed their tussle, so he hit the man in the head with the gun, which had little effect. The gun was hot from having been fired, forcing him to drop it. He then entered the fight to assist his friend, whom the man was biting in the chest. He first tried to use the stun gun on the man, but it failed to operate, so he picked up a television and hit the man over the head with it, but it did not stop the man. Next, He ripped a sink off the wall and hit the man with it, which also failed to slow him down. His friend then smashed the man over the back of the head with a glass bottle, but the man kept fighting. Eventually, the criminal stopped moving, and they tied his feet with a phone cord to restrain him. They then went over to their friend’s body, determined that he was not alive, and left the basement. They returned to his car, drove to the end of the block, and called 911.

A police officer and his partner received a radio transmission and responded to the scene. When they entered the basement, he saw two males lying on the floor. The man was face down and tied with a telephone cord, but was responsive.

A lieutenant from medical unit testified that he also responded to the scene, and found two males lying face down on the floor. He testified that a handgun was found on the floor directly beneath the other body.

Another detective testified that he interviewed the man at the hospital, and after advising him of his Miranda rights, the criminal stated that he had been smoking crack in the apartment with an acquaintance when two males entered. One of the men, who were heavy set, held a long-barreled gun which he appeared to be raising. The man claimed that he had a nine-millimeter gun in his hand, and upon seeing the other man’s gun, he fired approximately five times at the man. The man was never questioned about the witness and never mentioned in his statement to police.

During the ensuing charge conference, the man’s attorney did not specifically request a justification charge. Instead, the man’s attorney first introduced a theory of justification by reiterating his client’s statement to the police that someone came in brandishing a gun and that the man had fired his gun at the intruder only in self-defense.

In the opponent’s statement, the prosecutor agreed that there is an element of self defense and explained that such fact was the reason the man had not been charged with intentional murder. The prosecutor then repeatedly emphasized to the jury that a justification defense was not available for felony murder, and the man’s attorney objected each time. After the prosecution’s summation, the defense, for the first time, specifically requested a justification charge, arguing that the defense applied to felony murder.

Consequently, the Supreme Court denied the request finding that justification was not a defense available for felony murder, and the defense took exception. Notably, no facts suggest, and the man made no claim, that he had a justification defense with regard to the underlying felony of kidnapping.

On appeal, the man principally challenges the Supreme Court’s failure to charge the jury on the issue of justification with respect to the felony murder count. As a result, the court found that the man’s remaining contentions are without merit and the affirmed the judgment.

A person under the influence of prohibited drugs makes poor judgment and decisions that they end up regretting. If you want to pursue a legal action against someone who committed a gun crime, consult the Queens County Criminal Attorney together with the Queens County Arrest Lawyer from Stephen Bilkis and Associates.

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