Matter of Darin O.

[*1] Matter of Darin O. 2016 NY Slip Op 51713(U) Decided on November 17, 2016 Family Court, Kings County Wan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2016
Family Court, Kings County

In the Matter of Darin O., A Person Alleged to be a Juvenile Delinquent, Respondent.



D XXXXX/16



Attorney for the respondent: Genevieve Margaret Cahill, Esq., The Legal Aid Society, Juvenile Rights Practice

Attorney for the presentment agency: Emily B. Krueger, Esq., New York City Law Department, Office of the Corporation Counsel
Lillian Wan, J.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Wan, J.:

On September 9, 2016, the Presentment Agency filed the instant juvenile delinquency petition against the Respondent, Darin O., age 14. The top two charges are Criminal Possession of a Weapon in the Second Degree in violation of Penal Law §265.03(1)(b) and Penal Law §265.03(3), both a C Felony. The petition also alleges that the respondent violated P.L. §265.01-b (Criminal Possession of a Firearm), N.Y.C. Administrative Code §10-131(i)(3) (Possession of Pistol or Revolver Ammunition), N.Y.C. Administrative Code §10-131(i)(6) (Unlawful Possession of an Ammunition Feeding Device), N.Y.C. Administrative Code §10-131(i)(1) (Disposal of Ammunition or Ammunition Feeding Device), and Penal Law §265.05 (Unlawful Possession of Weapons by Persons Under Sixteen). The trial commenced on September 27, 2016 and was continued on October 12, 2016, October 18, 2016, October 19, 2016, October 25, 2016, October 26, 2016. The Court heard oral summations on November 2, 2016, and reserved decision. Based on the reasons set forth below, the Court finds that the Presentment Agency has failed to prove that the respondent possessed the firearm unlawfully and has failed to disprove the respondent's defense of temporary and lawful possession beyond a reasonable doubt.

Many of the facts are uncontroverted. The Presentment Agency presented the testimony of Police Officer Salaah Bayoumi and Police Officer Terrence Howard on their direct case. The respondent testified on his own behalf. The Presentment Agency then presented a rebuttal case which consisted of the testimony of Police Officer Michael Martin and Detective James Talbot, who was qualified as an expert in the identification and operability of firearms.

Officer Bayoumi and Officer Howard testified similarly. Both officers were working [*2]together on the evening of September 4, 2016, at approximately 8:55pm, when they received a radio run of shots fired at Lafayette Avenue and Tomkins Avenue in the vicinity of Herbert Von King Park, Brooklyn. Officer Bayoumi testified that he did not actually hear the shots being fired. Both officers arrived at the location in less than a minute after the radio run came through. Officer Bayoumi testified that he observed the respondent walking through the park at "a pretty fast pace" and looking over his shoulder numerous times in the direction of the gunshots. Both officers testified to the respondent holding a black plastic bag in his left hand. Officer Howard indicated that his attention was drawn to the respondent because he was running and then all of a sudden stopped and then kept speed walking looking back and forth. Officer Bayoumi also testified that he observed other people in the park running from the direction of Marcy Avenue and Lafayette Avenue. Officer Howard specifically stated that he saw three other kids running inside the park at Van Buren Street and Tompkins Avenue. Officer Bayoumi testified that while sitting in his police vehicle approximately less than fifty feet away, he saw the respondent throw the black bag in front of him and it landed behind a two-foot high fence inside the park. The bag was completely visible behind this fence. Officer Howard was the driver of the police vehicle and did not see the respondent throw the plastic bag because he turned his head to check the traffic.

Officer Bayoumi stated that the respondent walked toward him and his partner, who were both in uniform at the time. They were both outside the vehicle as the respondent approached. Officer Howard proceeded to enter the park through the entrance at Tompkins and Greene and walked to the area where respondent dropped the black bag, while the respondent walked out the park and approached Officer Bayoumi. The respondent initiated conversation with Officer Bayoumi. After oral argument outside the presence of the witness, the Court allowed Officer Bayoumi to testify to the respondent's out of court statements as excited utterances. The Court noted that trial courts are accorded wide discretion in determining whether the statements are the result of a startling or upsetting event. People v. Carroll, 95 NY2d 375 (2000); People v. Edwards, 47 NY2d 493 (1979). The Court further noted that the respondent's statements were made while under the stress of excitement caused by shots being fired in close proximity to the respondent just minutes before and that the statements were not the result of reflection. According to Officer Bayoumi, the respondent stated "you know me, you know me" and that when he asked the respondent "what's up, what's going on," the respondent responded "they were shooting at me." When Officer Bayoumi asked what was in the bag and why he threw it, the respondent responded "I'm going to be honest with you, there's a gun in the bag, I picked it up, I was going to bring it to you guys."

Officer Howard observed the black plastic bag and was able to see the handle of the firearm through an opening at the top of the bag. Officer Howard then signaled verbally and physically to his partner to place the respondent under arrest. Officer Bayoumi arrested the respondent for criminal possession of a weapon in the second degree. The record established that the respondent was arrested approximately five minutes after the shots were fired. After the arrest, Officer Bayoumi received the firearm, which he identified as a 9mm Jiminez Arms semi- automatic pistol. He noted that the firearm was loaded with one round of ammunition in the chamber and eight rounds of ammunition in the magazine. Officer Howard and Officer Bayoumi each testified that they later learned that the exact location of the shots fired was the vicinity of Lafayette Avenue and Marcy Avenue.

The respondent testified that on the night of September 4, 2016, at approximately [*3]8:45pm, he was walking on Marcy Avenue toward Lafayette Avenue along with three friends, Jahlil, Ian and Tiara. The respondent testified that he was carrying a black bag with a sweater inside it, and that he was holding the bag in his right hand. He testified that he had just left a friend's house and was heading home when he encountered three unknown boys on bikes. He testified that he had never seen the boys before, but his friend Tiara referred to the boys as "ops" which he understood to mean enemies. He stated that one of the boys was wearing a black hoodie with gray pants, another boy wore a blue hoodie with black pants and the third boy wore all black clothing. He testified that the boy in the black hoodie got off his bike and pulled out a gun from his waist and started pulling the trigger. The respondent testified that at this point, he was standing three to four feet away from the boy holding the gun. The respondent stated that when the trigger was pulled he did not hear the gun go off. On cross examination he further clarified that there was no bang and no clicking noise.

The respondent testified that he then took three or four steps, grabbed the gun from the boy in the black hoodie with his left hand and then punched him in the face with his right hand as he continued to hold on to the black plastic bag. After that, the boy in the blue hoodie, who was standing approximately six feet away from him pulled a gun out of his waist band and pointed it at him. The respondent testified that he began running towards the park and then heard three gunshots. The respondent stated that his three friends ran straight on Marcy Avenue while he turned on Lafayette Avenue towards the park entrance on Lafayette between Tompkins and Marcy. He testified that after he entered the park, he put the gun in the black bag that he was carrying and started speed walking. As the respondent got towards the exit to the park he heard a "police sound" and threw the bag and walked up to the police car as the officers were getting out of their vehicle. When asked on the witness stand why he threw the bag, the respondent stated "I was going to walk up to the cops and tell them and I didn't want to have a gun in the bag because a lot of young black people[s] getting shot." Respondent further testified that he told the police that he was "tussling" over the gun, and that he "grabbed it out of his hand." The respondent denied telling the police that he "picked up" the gun.

On re-direct examination, the attorney for the child asked the respondent to demonstrate how he got possession of the gun from the boy in the black hoodie. The respondent credibly demonstrated how he struggled to get the gun from the boy by punching him in the face. The respondent testified that he was not able to grab the gun away from the boy in the black hoodie right away and that the boy holding the gun "was being resistant" and that is the reason why he punched the boy. The respondent could not remember which part of the gun he touched as he tried to grab the gun away from the boy in the black hoodie but stated "I just know I had the grip of it." During his testimony, respondent clarified that he punched the boy in the black hoodie while holding the gun.

At the conclusion of respondent's testimony, the Presentment Agency sought an adjournment to present a rebuttal case. The Presentment Agency indicated its intent to call Detective James Talbot and Police Officer Michael Martin to rebut the respondent's testimony. The initial offer of proof with regards to Detective Talbot's testimony was that the detective would testify to the sound that would have been made if the trigger was pulled on the weapon. The Presentment Agency contended that this was to rebut the respondent's testimony that there was no clicking sound or any sound coming from the weapon. With regards to Officer Martin, the Presentment Agency indicated that Officer Martin would establish that when the weapon was recovered from the park, the safety on the weapon was not on.

However, when Officer Martin testified on the next date, he did not indicate whether the safety was on or off. Officer Martin testified that he arrived at the scene on September 4th, observed that the black plastic bag was located inside the park between a short two-foot fence, and he took photographs of the bag and the contents of the bag. He then transported the bag to the 79th Precinct and took the contents out of the plastic bag. Officer Martin indicated that he put on gloves and removed a 9 millimeter semi-automatic firearm and a sweatshirt from the bag, laid both items out on a white piece of a paper and took photographs. He testified that he did not manipulate the gun in any way prior to taking the photos at the precinct. Officer Martin further stated that he made the firearm safe by removing the magazine that contained the eight live cartridges and removed the one cartridge from the chamber.

Before Detective Talbot took the stand, the Presentment Agency clarified their prior offer of proof and stated that Detective Talbot would be testifying that the safety of the firearm was actually on and an individual would not be able to pull the trigger of the firearm when the safety is on. The Presentment Agency further clarified that Detective Talbot would also be testifying that there were no firing pin or breech face impressions on any cartridges that he examined, which is consistent with the safety being on.

Detective Talbot was qualified, on consent of counsel, as an expert in the field of identification and operability of firearms. Detective Talbot has been employed by the New York City Police Department as a firearms examiner since December 2012. He was certified in identification of firearms in October 2013, and operability of firearms and microscopy in July 2016. He has examined over one thousand pieces of ballistic evidence and has performed over 750 identification and operability tests on firearms, magazines and ammunition. He was previously deemed an expert on eight separate occasions in several New York Courts.

Detective Talbot testified that on September 7, 2016, he received the firearm, magazine and ammunition associated with this case. He testified that firing pin impressions are made when the firing pin of a firearm strikes the primer of a live cartridge. He further explained that breech face impressions are made when the live cartridge explodes, goes rearward and strikes the inside of the slide of a firearm. The impressions would then be made on the cartridge casing. Detective Talbot testified that he would observe live or fired cartridges for impressions with the naked eye and if such impressions were observed, he would test fire the pistol, take the evidence from the test fires and the evidence with the impressions and conduct a microscopic examination. Detective Talbot testified that he received nine cartridges for testing on September 7, 2016 but that he did not observe any firing pin or breech face impressions, therefore, he did not conduct a microscopy test. Detective Talbot concluded that the firearm was not fired nor was there an attempt to fire the gun. Detective Talbot was asked to review Presentment Agency's Exhibit 14, a photograph of the firearm in question, and identify whether the safety was on. He testified that the safety was on and therefore, the weapon would not have been able to go off if the trigger was pulled. He also stated that the trigger would not move if pulled while the safety is on, and there would be no noise from the weapon. Detective Talbot testified that if the safety was on, and the trigger was a little loose and then pulled, it may only move two millimeters.

Many other facts related to the firearm are not in dispute. In fact, both the presentment agency and defense counsel entered into two stipulations which were received as Presentment Agency's Exhibit 12 and Presentment Agency's Exhibit 13. This included a chain of custody stipulation as it relates to the 9mm Jiminez Arms semi-automatic pistol, serial No.32202, the [*4]magazine and the 9 rounds of 9mm caliber ammunition that were recovered from the black plastic bag.[FN1] The parties also stipulated that the same pistol and ammunition was operable.

Defense Counsel also consented to Laboratory Report #FB16-05558 and Laboratory Report #FBS16-03297 being entered into evidence as Presentment Agency's Exhibits 10 and 11, respectively. The Laboratory Reports established that "mixtures of DNA" were found on swabs of the "trigger/trigger guard," "backstrap and grip," and "slide grip grooves" of the 9mm Jiminez Arms semi-automatic pistol. Both parties stipulated that the respondent's DNA was found on the "trigger/trigger guard" and "backstrap and grip." There is no dispute that the respondent touched the gun. Both parties further stipulated that the DNA of two other unrelated individuals is also on the firearm. Furthermore, the Presentment Agency and the Attorney for the Child stipulated that the shell casings found at the location of the shooting in the vicinity of Lafayette and Marcy Avenues were from .40 caliber rounds of ammunition and that the .40 caliber rounds of ammunition could not have been fired from the 9mm Jiminez Arms semi-automatic pistol that was found in the black plastic bag by Police Officer Terrence Howard.

It is well settled that mere possession of a weapon is not a crime in every instance. People v. Banks, 76 NY2d 799 (1990). In People v. Almodovar, 62 NY2d 126 (1984), the Court of Appeals held that in some circumstances, a person may possess a proscribed weapon and still not be guilty of a crime because of the innocent nature of the possession. "The defense of 'temporary and lawful' possession applies because as a matter of policy the conduct is not deemed criminal." Id. at 130. For example, a defendant may not be guilty of unlawful weapon possession if the jury finds that he took the weapon from an assailant in the course of a fight. Id. For the trier of fact to consider a defense of temporary and lawful possession, there must be proof in the record showing a legal excuse for having the weapon in one's possession as well as facts tending to establish that once possession has been obtained, the weapon has not been used in a dangerous manner. People v. Williams, 50 NY2d 1043 (1980).

It is important to note that it is not the respondent who is required to prove that his possession of the weapon was innocent. People v. Holes, 118 AD3d 1466 (4th Dep't 2014). It is the prosecution who has the burden of proving beyond a reasonable doubt both that the respondent knowingly possessed the weapon and that such possession was not innocent. Id. In People v. Russell, 47 AD3d 732 (2nd Dep't 2008), the Second Department reversed a conviction for criminal possession of a weapon in the third degree because the trial court's charge to the jury on the defense of temporary and lawful possession failed to clearly and unequivocally convey the prosecution's burden of disproving the defense beyond a reasonable doubt.

The cases cited by the Presentment Agency are distinguishable from the facts of this case. For example, in People v. Griggs, 108 AD3d 1062 (4th Dep't 2013), the Court concluded that the defense of temporary innocent possession did not apply because the defendant, who claimed that he wrestled the gun away from a man who was trying to rob him, hid the gun under [*5]a fence in a vacant lot and then remained silent while the police were searching the vacant lot. The Court specifically noted that the defendant made no effort to turn the gun over to the police. In People v. Ortiz, 172 AD2d 696 (2nd Dep't 1991), the defendant had opportunities to turn in the gun while officers approached him and while he stood in front of a police precinct, but failed to do so. In People v. Sheehan, 41 AD3d 335 (1st Dep't 2007), the Court found that the evidence disproved defendant's defense of temporary lawful possession because the defendant fled upon the approach of the police and then deposited the weapon in a garbage can. The conduct described in these cases has been found as "utterly at odds" with a claim of innocent possession. Id. at 335. This is not the case here. There is proof in the record before the Court that the respondent had a legal excuse for being in possession of the 9mm Jiminez Arms semi-automatic pistol.

Here, the respondent's act of throwing the black plastic bag containing the firearm on the ground does not negate the defense. It also does not mean that the weapon has been used in a dangerous manner once acquired. The Presentment Agency cited to People v. Banks, supra, in support of their contention that the respondent is not entitled to the defense because he disposed of the gun in a dangerous manner. That case is distinguishable from the instant case because there the defendant concealed the weapon on his person and was determined to transport it through the street and on the subway from Manhattan to Queens where he proposed to throw it down a sewer. The totality of this respondent's behavior is not at odds with a claim of innocent possession. Only five minutes elapsed from the time that the shots were initially fired in the vicinity of Marcy and Lafayette Avenues and the arrest of the respondent. The police officers observed the respondent within one minute of responding to the radio run. There was no time for lengthy deliberation and the respondent only held the weapon for several minutes. The respondent made the split second decision to throw the bag as he approached the police. The respondent did not throw the bag and run away from the police. Instead, he walked towards the police, and initiated conversation with the officer. The respondent's statement that he threw the bag because a lot of young black people have been shot is not unreasonable. It is credible that the respondent did not want to be holding a gun when he was approaching two uniformed police officers, and that he threw the bag as a self-protective measure. He did not conceal the bag. He threw it behind a small fenced area where the bag could be seen the entire time. The respondent then informed the officer that he was shot at.

There were indeed shots fired in the vicinity of the park that evening minutes before the respondent approached the police. The police were there in the first instance because they were responding to a call of shots fired in the vicinity. Officer Howard and Officer Bayoumi confirmed that the location of the shots fired was the vicinity of Lafayette Avenue and Marcy Avenue. This is also the exact location where the respondent was standing when he encountered the three boys on bikes. Both the Presentment Agency and the respondent introduced marked maps. The exact location of the shots fired is marked with a letter "S" in Presentment Agency's Exhibit 1. The location of the respondent and the three boys on bikes is marked with an "A" and "B" on Respondent's Exhibit A. This is the same location. The respondent stated that his three friends ran straight on Marcy Avenue while he turned on Lafayette Avenue and entered the park on Lafayette between Marcy and Tompkins. Officer Bayoumi initially observed the respondent in this vicinity speed walking through the park looking over his shoulder numerous times in the direction of the gunshots.

The respondent's version of the story is further corroborated by the fact that there is no [*6]dispute that the shots that were fired that evening did not come from the firearm that the respondent was carrying in the black plastic bag. The shell casings found at the location of the shooting were from .40 caliber rounds of ammunition, and could not have been fired from the firearm that respondent was found to be in possession of. The respondent stated that both he and his three friends started running once the boy in the blue hoodie pulled out the gun. Officer Howard observed the respondent running and he also saw three other kids running inside the park around Van Buren Street and Tompkins Avenue. It is also not in dispute that the respondent approached the police officers. Police Officer Bayoumi specifically testified that he did not stop the respondent, and that the respondent walked over to him and initiated the conversation with the police. The respondent then told Officer Bayoumi that there was a gun in the black bag when asked. Furthermore, the fact that the respondent's DNA was found on the trigger of the firearm does not disprove the respondent's defense of temporary and lawful possession. The respondent's testimony that he did not know exactly where he touched the gun was credible in light of the struggle that took place between him and the boy with the black hoodie. It is not disputed that the DNA of two other individuals was also on the trigger, which is consistent with the respondent's testimony about how he acquired the firearm. The Court further notes that the respondent does not have the burden of proving that his possession of the weapon was innocent, and it is always the Presentment Agency who has the burden of proving beyond a reasonable doubt that the respondent knowingly possessed the weapon and that such possession was not innocent. People v. Holes, supra.

Furthermore, the Court finds that the Presentment Agency's rebuttal case actually supported the respondent's version of the events, and further corroborated his testimony. The respondent stated that he observed the boy in the black hoodie pull the trigger multiple times. That was simply what he observed. Detective Talbot's testimony that when the safety is on, the trigger will not move or at most move two millimeters if the trigger is a little loose, does not detract from the respondent's credibility. It is reasonable that the other boy's finger could have moved even if the actual trigger did not. The respondent did not hear any noise or sound come from the gun when he saw the boy pull the trigger. This is all consistent with Detective Talbot's testimony that the safety was on and that no sound comes from the gun when the safety is engaged.

Accordingly, since the Court finds that the Presentment Agency has failed to prove any count of the petition beyond a reasonable doubt and has failed to disprove the respondent's defense of temporary and lawful possession beyond a reasonable doubt, the petition is dismissed in its entirety.

DATED: November 17, 2016

__________________________________

Hon. Lillian Wan Footnotes

Footnote 1:The Presentment Agency and the Attorney for the Child stipulated that the 9mm Jiminez Arms semi-automatic pistol, the magazine, and the 9 rounds of 9mm caliber ammunition that were received from the black plastic bag were the same 9mm Jiminez Arms semi-automatic pistol, the same magazine and the same 9 rounds of 9mm caliber ammunition that were vouchered and tested by the NYPD. The same 9mm Jiminez Arms semi-automatic pistol, the same magazine and the same 6 of 9 rounds of 9mm caliber ammunition was received into evidence as Presentment Agency's Exhibit 5 without objection.