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Officer saw the defendant’s hands near the trigger housing of the gun


A Queens Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered September 23, 1982, convicting him of attempted murder in the first degree (two counts), upon a jury verdict, and imposing sentence.

A Queens Gun Crime Lawyer said that, on June 25, 1981, police officers received a radio transmission directing them to an address in Queens where a man was reported to be harassing two women with a gun. The uniformed officers proceeded to that address and knocked on the door. In response to an occupant’s query, the officers identified themselves as police officers. After a brief pause, the door of the apartment abruptly swung open revealing a man holding a shotgun which pointed towards the floor. Before the officers could draw their own weapons or take cover, the defendant raised the gun to shoulder level and aimed it at their heads. The other Officer saw the defendant’s hands near the trigger housing of the gun and heard a sound he associated with the trigger being pulled on a gun that misfires. Although the first Officer’s eyes were transfixed on the barrel of the gun, he heard the familiar click of a trigger being pulled. The defendant’s female companion testified that she watched as the defendant jumped up and back while pulling the trigger with his right forefinger. She also heard the resultant metallic click. The shotgun, however, failed to fire. As the officers retreated in an attempt to protect themselves, the criminal defendant escaped out of a rear window, taking the gun with him.

The issue in this case is whether the court erred in convicting defendant of attempted murder in the first degree.

Contrary to the defendant’s contentions, the record discloses that there was more than legally sufficient evidence to sustain the jury’s verdict convicting the defendant of two counts of attempted murder in the first degree. The jury was entitled to find that the defendant intended to murder the uniformed police officers based on the testimony that he aimed the gun at their heads, pulled the trigger hard enough so that three eyewitnesses heard the resultant click, jumped up and back in anticipation of the force of the discharge, and fled when the gun failed to discharge. It is no defense to a prosecution for an attempt to murder a police officer that the crime was factually impossible because the gun malfunctioned. Although the defendant may not have succeeded in his purpose, his conduct came “within dangerous proximity to the criminal end to be attained” and was sufficient to support a conviction for attempted murder.

In addition, we find that the sanction imposed on the People by the trial court as a penalty for the inadvertent destruction of the gun constituted a proper exercise of discretion and minimized the prejudice, if any, to the defendant. The suppression of the ballistics reports and the preclusion of expert testimony resulted in the dismissal of one count of the indictment and acquittal on another involving weapons possession. More importantly, the absence of the gun from the trial had no bearing on the question of the criminal defendant’s innocence or guilt of attempted murder. Nor is there any evidence of bad faith on the part of the law enforcement officials. The defendant’s inaction in failing to inspect the gun prior to trial further negates any claim of prejudice since the gun was not an essential element in the preparation of the defendant’s trial strategy. Under the circumstances of this case, the trial court did not abuse its discretion in declining to dismiss the indictment.

We further agree with the determination of the trial court that viewing the evidence in the light most favorable to the defendant, no reasonable view of the evidence warranted the submission of the defense of extreme emotional disturbance to the jury. There was no evidence of a loss of self-control or of a reasonable excuse for such an emotional state. The fact that the defendant and his female companion argued prior to the arrival of the police is insufficient to give substance to the defense that the criminal defendant acted under extreme emotional disturbance. Nor does the fact that the defendant may have used drugs in the past and smelled of liquor at the time of the incident bear on the defense.

Accordingly, the court has considered the defendant’s remaining contentions and find them to be without merit. The court held the judgment is affirmed.

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