New York Criminal Lawyer Blog
There are few things more difficult as a criminal defense attorney than representing an “empty chair” at trial where that chair, or, better stated, client, is accused of possessing a loaded and disguised “cell phone” gun in a vehicle he is driving without any passengers. OK, well, maybe that is surmountable, but throw in the fact that the evidence before the jury demonstrated that the accused’s DNA was on both the firearm trigger and grip, and that he had what police called a “holster”, things tick up in difficulty. Sound insurmountable? Well, you’d be wrong if you said “Yes”, but that is not all Saland Law faced in defense of a client standing trial for Criminal Possession of a Weapon in the Second Degree, Penal Law 265.03. In fact, there is much more…
Despite prosecutors offering the defendant an opportunity at a misdemeanor with a conditional discharge, aka, no jail nor probation, he faced a 3.5 year minimum prison sentence and as much as 15 years incarceration, our client refused the offer. Compounding matters in terms of reaching a disposition, our client, as shared in open court, would not communicate with me, his criminal defense attorney. Instead, the defendant left during jury selection only to come back another day to interrupt me as I was about to open. Taken off guard, our client stated in front of the jury that he would give his own opening. Though he did not do so, our client decided to leave his trial all together, along with his witness who was the owner of the vehicle and purchased the gun, leaving the cards stacked against us both to pile up. Left with no defense witnesses, even if it might have been possible to establish temporary lawful possession if the defendant and firearm owner/vehicle owner testified, all I was left with was my cross-examination of the People’s witnesses and summation to convince the jury that the prosecution did not and could not prove their case beyond a reasonable doubt.
I will not delve into the evidence presented at the trial other than to say as follows: credibility means a lot to a jury. To that end, when an officer, who was not up front about his own conviction for Criminally Negligent Third Degree Assault where he broke a Little League official’s nose and left over 80 staples in his head, minimizes numerous findings against him both internally by the NYPD and Civilian Complaint Review Board, he handcuffs prosecutors. Making matters worse, his claims that just after he conveniently turned off his body camera his elbow struck the center console inside the defendant’s vehicle before he parked it at the precinct, popping it open to reveal a gun, likely left many scratching their heads and questioning his veracity.
When you combine officers’ credibility, or lack of the same, by questioning the accuracy of their testimony, the odor of mendacity (thank you, Judge McAffee) surrounding their purported actions during their investigation, their recorded violations of an accused rights on their body cameras despite his repeated requests for counsel (this, along with the search, somehow survived suppression by a prior court’s acrobatic analysis), and their basic truthfulness based on their collective disciplinary history for unlawful car searches and coerced “voluntary consent” to search an apartment, juries begin to question the case as a whole. Whether that means nullification or giving an extra-hard look at proof beyond a reasonable doubt, all that is needed is one juror to disagree with the others to upend the People’s case. For proof of this fact, we need not look past this case as a shining example. After two Allen charges by the Court to send the split jury back to deliberate, the 12 fact-finders did not get an opportunity to come to a verdict. Though I do not believe they could do so, the judge granted Saland Law’s request for a mistrial.
Ultimately, what each juror believed and how many were for conviction versus acquittal I do not know, but there are a few things that are certain. As was demonstrated in this case, there is no substitute for preparedness, and both the defense and the prosecution were well prepared. Second, being adversaries in a courtroom does not mean lawyers have to be adversarial. Both sides can advocate without unnecessary friction. Lastly, if you concentrate on the evidence and witnesses, and stick to the four corners of the indictment and courtroom, hard work and diligence can pay dividends. What ultimately happens with this case going forward, I cannot say, but the foundation has been laid for a defense if and when the prosecution tries the case again.
Saland Law is a criminal defense firm founded by Jeremy Saland, a former Manhattan prosecutor. To learn more about Criminal Possession of a Weapon crimes in New York, including firearms, knives, brass knuckles, batons, and other per se weapons, follow the highlighted links.