People v Hammond

[*1] People v Hammond 2006 NY Slip Op 50173(U) [11 Misc 3d 1051(A)] Decided on February 8, 2006 Criminal Court, Kings County Wilson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 8, 2006
Criminal Court, Kings County

The People of the State of New York,

against

Barry Hammond, Defendant.



2004KN047896

John H. Wilson, J.

Defendant was initially charged with two counts of Criminal Possession of a Weapon in the Second Degree (PL Sec. 265.03), a Class C Felony, two counts of Criminal Possession of a Weapon in the Third Degree (PL Sec. 265.02), a Class D felony, two counts of Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01), a Class A misdemeanor, one count of Menacing in the Second Degree (PL Sec. 120.14), a Class B misdemeanor, and Harassment in the Second Degree (PL Sec. 240.26), a violation.

Defendant was indicted for Criminal Possession of a Weapon in the Second, Third and Fourth Degrees, however, this indictment was dismissed by the Supreme Court, State of New York County of Kings (Hon. Balter, JSC) on the basis of a violation of Defendant's right to testify before the Grand Jury pursuant to CPL Sec. 190.50. On February 10, 2005, after Defendant testified before the Grand Jury, a Prosecutor's Information was returned solely as to the charge of Criminal Possession of a Weapon in the Fourth Degree. The matter was then adjourned to the Criminal Court for further proceedings.

By motion dated September 19, 2005, Defendant seeks the dismissal of the Prosecutor's Information pursuant to CPL Sec. 210.40, and in the interests of justice pursuant to People v. Clayton, 41 AD2d 204, 342 NYS2d 106 (2d Dept., 1973).

This Court has reviewed a response from the People dated October 24, 2005, as well as the Grand Jury minutes pertaining to this matter.

By order dated November 14, 2005, Defendant's motion was granted to the extent of ordering a hearing. Said hearing was held on January 12, 2006, in Part AP 6 of the Criminal Court, Kings County.

Based upon the evidence adduced at the hearing, and for the reasons stated below, Defendant's motion to dismiss is granted.

STATEMENT OF THE FACTS

On August 5, 2004, at approximately 4:40 AM Defendant was stopped in front of 826 Hendrix Street, County of Kings, City and State of New York by members of the New York City Police Department. The Police had received a report from Ms Gwendolyn Kennedy that [*2]Defendant had threatened her with a gun earlier that same morning. A loaded .380 revolver was recovered from the trunk of Defendant's car.

At the hearing held on January 12, 2006, Defendant, the sole witness presented in support of the motion to dismiss, testified to being a 46 year old employee of Burns Security, for whom he had worked for approximately 4 years. Hearing, p. 4. He stated that he is licensed and bonded as a security agent, and provided the Court with a copy of his Registration with the New York State Department of State Division of Licensing Services. Hearing, p. 5. Defendant has no prior criminal record. Hearing, p. 6.

Defendant stated that he lives with his father, Mr. Melvin Hammond, who is 97 years old. The senior Mr. Hammond suffers from a variety of aliments, including high blood pressure, heart problems, and Alzheimer's disease. Hearing, p. 4, 6. To substantiate his testimony on this point, Defendant provided the Court with evidence of Mr. Melvin Hammond's date of birth and medical records. Hearing, p 16-17.

On the evening before his arrest, Defendant was present at his home with his father, and Ms Gwendolyn Kennedy, whom Defendant described as his girlfriend. Hearing, p. 6. At that time, Defendant noticed that his father was carrying a firearm in his left pocket. Defendant stated that he could see the handle of the weapon protruding from his father's pocket.[FN1] Hearing, p. 7. Defendant told his father "Pop, you have a firearm in the pocket, and I have to take it." Mr. Melvin Hammond reportedly replied, "What firearm are you talking about?" which lead Defendant to take the gun "for safety, my safety, anybody else's safety." Defendant indicated that he put the gun in a pouch, which he placed in a duffle bag, which he then placed in his car. Hearing, p. 8.

When asked what he planned to do with the gun, Defendant stated that he intended on turning the gun in to his immediate supervisor, who was a retired Corrections Captain, however, that same night, Ms Kennedy had a family emergency which necessitated a trip to Queens. Hearing, p. 9.

Early in the morning of August 5, 2004, at approximately 3 AM, after Defendant and Ms Kennedy has returned to her home on Hendrix Street, Brooklyn and gone to bed, Defendant awoke to find that Ms Kennedy and her children were gone, as well as five hundred dollars from Defendant's wallet, and his jewelry case. Hearing, p. 10.

About one hour later, as Defendant was leaving the Hendrix Street house, he was approached by two uniformed officers who asked him "what happened," and "what's in the trunk of the car." Hearing, p. 11. Defendant told the officers that he "had a confiscated firearm from my father that I was going to return to my boss." The Officers told Defendant that Ms Kennedy alleged that he had "placed the gun to her head and threatened to kill her." Hearing, p. 12.

Defendant consented to the search of the trunk of his car, and pursuant to that search, the weapon was recovered. Defendant was then taken to the Precinct, and read his warnings pursuant to Miranda v. Arizona, 384 US 436, 86 S. Ct. 1302 (1966). Defendant did then [*3]substantially repeat the explanation he had given to the police at the time he was stopped and the gun recovered. Hearing, p. 12-13.

The People did not controvert any of the Defendant's evidence, offered no witnesses, and produced no evidence on their case in opposition to the Defendant's motion to dismiss. During their cross-examination, the People established that while the 84 Precinct was closest to his father's house, Defendant intended on taking the gun to his boss, who would then take the gun to the 90 Precinct, where he and his supervisor "have a relationship." Hearing, p. 23.

LEGAL ANALYSIS

CPL Sec. 170.40(1) provides for a variety of factors which require dismissal of "an information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof" "as a matter of judicial discretion" if "some compelling factor, consideration or circumstance clearly demonstrate that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." See, also, CPL Sec. 170.30(g).

The discretion of the Court to dismiss an information in the furtherance of justice is not absolute, nor is it uncontrolled. See, People v. O'Grady, 175 Misc 2d 61, 65, 667 NYS2d 895 (Crim. Ct., Bx Cty, 1997) citing People v. Wingard, 33 NY2d 192, 351 NYS2d 385 (1973). In fact, this power is to be "employed cautiously and sparingly." See, People v. Eubanks, 114 Misc 2d 1097, 1098, 454 NYS2d 768 (App. Term, 2d Dept.,1982).

On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." See, People v. Boulet, 88 Misc 2d 353, 355, 388 NYS2d 250 (City Ct., Rochester, 1976); People v. Verardi, 158 Misc 2d 1039, 1042, 602 NYS2d 318 (Crim. Ct., Kings Cty, 1993).

When considering the motion, the court need not "engage in a point-by-point catechistic discussion of all ten statutory factors; instead, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the state." See, People v. Gragert, 1 Misc 3d 646, 648, 765 NYS2d 471 (Crim. Ct., NY Cty, 2003).

In the instant case, the totality of the circumstances compels a finding by this Court that Defendant has met his burden and established that dismissal of this matter would serve the interests of justice.

As a preliminary matter, this Court finds the Defendant to have been a credible witness, who's testimony was largely unchallenged by the People. See, People v. Elting, 18 AD3d 770, 795 NYS2d 699 (2d Dept., 2005). Therefore, the evidence offered by Defendant in his own behalf will be viewed in this light.

Defendant testified that he is 46 years old, and has no criminal record. He is a licensed and bonded security agent, employed by Burns International for the past 4 years. These factors, standing alone, are insufficient to justify dismissal of this matter in the interest of justice. See, Gragert, 1 Misc 3d at 649. However, the fact that Defendant has no prior criminal record and is of an exemplary character does tend to offer some support to his motion, and credibility to his evidence. [*4]

Defendant provided un-controverted evidence that his father, a 97 year old man suffering from the early stages of Alzheimer's disease was in possession of a loaded firearm. Defendant took possession of this weapon with the intention of turning it over to the 90 Precinct, where his boss, a retired Corrections Captain, had a professional relationship with members of the New York City Police Department. The explanation makes sense, and if believed, establishes a viable defense of temporary and lawful possession. See, People v. Williams, 50 NY2d 1043, 431 NYS2d 698 (1980).

In Williams, the Court of Appeals noted that "there are instances...in which possession (of a weapon) might result unavoidably from the performance of some lawful act and would not constitute a crime." The Court went on to note that "the underlying purpose (of the innocent possession charge) is to foster a civic duty on the part of citizens to surrender dangerous weapons to the police." 50 NY2d at 1045.

The evidence presented by Defendant, un-challenged by the People, is consistent with a view that in disarming his 97 year old father, Defendant was removing a dangerous weapon from an unlawful possessor. In doing so, Defendant was performing a legitimate and lawful act. See, People v. Legett, 140 AD2d 1, 4, 531 NYS2d 559 (1st Dept., 1988) and cases cited therein.

Further, in placing the firearm into a pouch, then a duffle bag, then the locked trunk of his motor vehicle, Defendant exhibited a desire to safeguard the weapon, and properly dispose of it with the suitable authorities. His actions are all consistent with his stated intention of providing for the safety of himself, his family, and the public at large.

More evidence of the Defendant's positive intentions was his complete cooperation with the police officers who arrested him. Based upon his un-contradicted testimony, Defendant did not resist arrest in any way, told the officers were the gun was located, and allowed them to open the trunk of his car, and secure the firearm. These are not the actions of an individual with a guilty conscience.

As to the uncorroborated allegations made by Ms Kennedy, which lead to the Defendant's arrest, the following facts are noted; Ms Kennedy did not appear at the January 12, 2006 hearing. While she did testify at the initial Grand Jury presentation of this matter, she either was not called upon to testify at the re-presentation of this matter, or failed to appear. Subsequently, after re-presentation of this case, the Grand Jury voted to return a Prosecutor's Information only as to the charge of Criminal Possession of a Weapon in the Fourth Degree, a Class A misdemeanor.

Thus, given this evidence, this Court believes that the interests of the Defendant in having this matter dismissed outweigh the interests of the state in having this matter prosecuted. In fact, in a case where an individual establishes that he disarmed a person with diminished competence, at risk to his own person, and exhibits every intention of turning the gun in to the proper authorities, the confidence of the public in the criminal justice system could only be strengthened and enhanced by the dismissal of this matter.

Therefore, Defendant's motion dated September 19, 2005 to dismiss this matter in the interests of justice is granted. Sealing is stayed until March 21, 2006.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New York February 8, 2006 [*5]

_______________________________ Hon. John H. Wilson, JCC Footnotes

Footnote 1: Defendant testified that the weapon, a .380 caliber revolver, had been in Mr. Melvin Hammond's possession for over 20 years. Defendant also stated that he had been aware of his father's possession of the gun, however, since he had not seen the weapon in over 20 years, he "never really focused" on the weapon until he observed his 97 year old father carrying the weapon in his pocket. Hearing, p. 20-21.