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Grand Jury was “severely undermined”


On Saturday afternoon, December 22, 1984, A, B , C, and D boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, C and B, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Defendant boarded this subway train and sat down on a bench towards the rear section of the same car occupied by the four youths. Defendant was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition. It appears from the evidence before the Grand Jury that A approached defendant, possibly with D beside him, and stated “give me five dollars”. Neither A nor any of the other youths displayed a weapon. Defendant responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit A in the chest; the second struck D in the back; the third went through C’s arm and into his left side; the fourth was fired at B, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After the criminal defendant briefly surveyed the scene around him, he fired another shot at B, who then was sitting on the end bench of the car. The bullet entered the rear of B’s side and severed his spinal cord.

The conductor went into the car where the shooting occurred and saw defendant sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparent taken cover, also lying on the floor. Defendant told the conductor that the four youths had tried to rob him.

While the conductor was aiding the youths, defendant headed towards the front of the car. The train had stopped just before next station and defendant went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. C and A initially listed in critical condition, have fully recovered. B remains paralyzed, and has suffered some degree of brain damage.

According to defendant’s statement he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being “maimed”.

Further, criminal defendant states that when he fired, his intention at that point was to “murder the four youths, to hurt them, to make them suffer as much as possible”. Defendant noticed that one of the youth who had been standing still was now sitting on a bench and seemed unhurt. As defendant told the police, “I said ‘you seem to be all right, here’s another”, and he then fired the shot which severed B’s spinal cord. Defendant added that “if I was a little more under self-control * * * I would have put the barrel against his forehead and fired.” He also admitted that “if I had had more bullets, I would have shot them again, and again, and again.”

On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree, for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree, for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder, four charges of assault in the first degree, one charge of reckless endangerment in the first degree, and one charge of criminal possession of a weapon in the second degree.

In an order dated January 21, 1986, Criminal Term, granted defendant’s motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was “severely undermined” by the apparently perjured testimony of the two youths (A and C).

The Court is now tasked to determine, whether the requirement of reasonable belief, as to the use of deadly force to warrant the justification of self-defense, includes only a subjective approach, which is the belief alone by the defendant as to the reasonableness of his conduct or the objective approach that the jury must look into if a reasonable person could have had these beliefs.

This Court, however, finds that the Criminal Term erred in dismissing the charges, specifically when it ruled that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether defendant’s conduct was that of a “reasonable man in defendant’s situation”.

Penal Law article 35 recognizes the defense of justification, which “permits the use of force under certain circumstances”. One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person. Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: “a person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person” (emphasis added).

Section 35.15(2) sets forth further limitations on these general principles with respect to the use of “deadly physical force”: “A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * * 4 or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery” (emphasis added).

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor “reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor “reasonably believes” that such force is necessary to avert the perceived threat.

Because the evidence before the second Grand Jury included statements by criminal defendant that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in Section 35.15 to the Grand Jury. The prosecutor properly instructed the grand jurors to consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges.

Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant’s actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the “circumstances”, as explicated above, if a reasonable person could have had these beliefs.

In all criminal proceedings involving justification of self-defense the assistance of a Bronx County Criminal Lawyer is a must. Without the help of Bronx County Criminal Lawyer or Bronx County Assault Attorney, the defense sought could become unsuccessful.

If you are looking for Bronx County Criminal Lawyer contact the Stephen Bilkis & Associates.

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