Notable Decisions and Other News

Decisions

New Trial Ordered Because of Charge Error

03/21/2018

Both police officers who followed the car appellant was driving testified that the gun was seen “solely in the physical possession of the other occupant” of the car, who “threw it out the rear passenger side window.”  The Second Department held that this “clear-cut evidence that the gun was observed exclusively in the possession of an identified occupant of the vehicle render[ed] the automobile presumption inapplicable.”  Therefore, it was error for the lower court to have granted the People’s request for a jury charge on the “automobile presumption” of possession of a weapon.

Since it was “impossible to determine whether the guilty verdict was based on th[e] improper jury charge rather than the proper charges pertaining to the People’s alternative theories of constructive possession and acting in concert,” the Second Department concluded that the error was not harmless, reversed appellant’s conviction of criminal possession of a weapon in the second degree (two counts) and ordered a new trial on those counts.

Samuel Brown briefed and argued the case.