People v. KEVIN W. (SUPPRESSION OF FIREARM)
Court: Supreme Court Queens County (Barry Kron, J.S.C.)
Charge: Criminal Possession of a Weapon in the Second Degree (Mandatory minimum sentence of three and one-half years if convicted)
Pre-trial Suppression (Dunnaway/Mapp) Hearing conducted
Prosecution Case: Anonymous call to 911 operator reporting a male with yellow shirt and blue shorts at a sidewalk location threatening a woman with a gun. The police arrive within 3 minutes and observe my client (wearing yellow shirt and blue shorts) standing next to a woman on the sidewalk. Police approach and allegedly observe a gun sticking out of the client’s waistband. The police grab the client, put him against the wall and recover the weapon from his waistband.
Defense Case: Through a thorough cross-examination ofthe arresting officer and the presentation of defense witnesses (with an in court demonstration of the client wearing the yellow shirt), the defense convinced the court that the police testimony was fabricated with respect to observing a weapon protruding from the client’s waistband. The defense also argued that under applicable law, the police did not observe anything suggestive of criminal conduct and that the anonymous 911 call was legally insufficient to justify the police actions in forcibly grabbing the client, putting against the wall and searching him.
Court ruling: The trial court suppressed the weapon found on the client. The prosecution appealed to the Appellate Division and the ruling of the Supreme Court was affirmed (http://law.justia.com/cases/new-york/appellate-division-second-department/2013/2012-01425.html )
Result: Weapon suppressed and case dismissed.