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The juvenile was then released from custody


One evening, police officers were called to an alleyway and found a lifeless body of a man, who had been fatally shot in the right temple with a .25 caliber pistol.

At trial, evidence revealed that the owner of the caliber pistol, the alleged offender, was a member of a neighborhood youth gang, while the victim was a member of the rival gang with which the offender had previously been associated.

A week or two before the murder, the offender told another member of the gang that he wants to kill the victim because he believed that the victim had assault his girlfriend.

A young woman, who knew both the offender and the victim, testified that she saw them together about 30 minutes prior to the murder on a street which was only a few blocks away from what was soon to become the scene of the murder. She stated that she saw the offender hitting the victim on the face and chest while holding him by his collar. She further stated that the victim was not resisting the offender physically, but she heard the victim saying something.

Additional testimony was provided by another member of the gang, who was standing in front of a liquor store at the time of the murder. He testified that the criminal offender, the victim, and several other youths walked by him while he was standing there, and that the offender had one hand on the victim’s shoulder and carried the murder weapon in his other hand. They walked to the intersection and then turned the corner in the direction of the alleyway and disappeared from his sight. A minute or two later, several other youths, some of whom he recognized as fellow members of the gang, also passed him and followed the same route. About a minute later, he heard a shot, and then saw all but one of the youths who had passed him come running back around the corner and up the block. The one who did not return was the victim, whom they had left bleeding to death on the pavement behind them.

After the investigation, the offender was arrested and charged with the crime of murder, in that he intentionally caused the death of the victim by shooting him with a pistol. Meanwhile, another member of the gang, a juvenile, had been questioned by police in the course of an unrelated investigation. During the said interrogation, he told the investigating officers that he had killed the victim, and made arrangements with other members of the gang to have the murder weapon turned over to the police.

Consequently, the juvenile was adjudicated a juvenile delinquent following his admission in the court that he had committed an unspecified act which would have constituted the crime of manslaughter in the second degree, had it been committed by an adult, and was transferred to the custody of the state division for youth for a period of 18 months.

The juvenile was then released from custody prior to the offender’s trial, and was not available to testify at that trial. Instead, testimony concerning his confession was obtain by the offender’s attorney during cross-examination of the police officers to whom the juvenile had made his statements.

Subsequently, the offender was not indicted for accessorial conduct, and the trial court refused to give an action in concert charge to the jury. Instead, the court charged the jury that in order to convict the offender they must find that he had actually shot the victim. Afterward, the jury convicted the offender of murder, and he appealed to the appellate division.

The appellate division at first reversed his conviction and ordered a new trial because of certain perceived trial errors. Upon the offender’s motion for re-argument of the appeal, however, the appellate division granted the motion to reargue, concluded that the opponent had failed to prove the offender’s guilt, and ordered the criminal indictment dismissed.

The opponent again filed an appeal and the court concludes that they did meet their burden of proof and that the indictment should not be dismissed, but a new trial is needed because of certain errors.

Turning to the offender’s claim that the complainant failed to prove him guilty, the court disagree with the offender’s contention that he may not be convicted, in spite of the overwhelming circumstantial evidence of his guilt, simply because another person, the juvenile, has confessed to the crime.

Further, the offender argues that the mere existence of evidence which would preclude his conviction if believed by the jury is adequate to prevent his conviction even if that evidence is disbelieved by the jury, when the case against him is based on circumstantial evidence.

Sources revealed that the offender’s argument contains the seeds of its own destruction, for a jury faced with conflicting evidence may accept some and reject other items of evidence, absence any logical inconsistency in the jury’s choice, regardless of whether that evidence is circumstantial or direct.

In this case, the court stated that the evidence of the offender’s guilt was overwhelming, and the jury was free to disbelieve the admissions made by the juvenile. And so, the court concludes that the verdict of guilty was based on proof of guilt beyond a reasonable doubt. As a result, the order of the appellate division dismissing the indictment cannot be sustained.

Yet, the said conclusion, does not fully resolve the appeal, for the offender contends that a new trial is necessary because of certain errors in his first trial. Sources revealed that the court’s examination of the record convinced that a new trial is indeed necessary, both because of the trial court’s failure to apply the appropriate standards in deciding the offender’s motion to limit cross-examination into his prior behavior should he take the stand on his own behalf, and because of the prosecutor’s improper conduct in presenting that same information to the jury via cross-examination of the offender’s mother even though the offender himself did not testify.

Prior to trial, the offender moved to limit the extent of permissible cross-examination by the complainant into prior immoral, vicious, or criminal acts committed by him should he testify on his own behalf. Upon learning that those prior acts had not eventuated in convictions, the court stated that the law was well settled that the considerations the court reiterated in previous case.

The court also erred in permitting the prosecutor to extensively cross-examine the offender’s mother concerning her personal knowledge of prior immoral, vicious, or illegal acts by the offender. The offender’s mother testified on behalf of the defense and without objection that she had never seen the murder weapon, that the offender worked and contributed money to the family, and that he had never been convicted of a crime.

On cross-examination, the complainant was permitted, over defense objection, to question her about her knowledge of her son’s prior possession of a gun at a specified time and place. The complainant contends that the questioning was permissible as an attempt to impeach the offender’s mother, whom they characterize as a character witness.

For that reason, the order appealed from is modified to the extent of reinstating the indictment and remitting the case to the Supreme Court for a new trial.

It is important to prove someone’s guilt based on proper and adequate evidence. If you are dealing with a case and you want to be given a fair trial, you can have the representation of the Queens County Criminal Lawyer from Stephen Bilkis and Associates. Further, you can also have the group of counsels of Queens County Possession of a Weapon Attorney for matters related to gun offenses.

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