People on Information of Bauer v. Oppman

CourtNew York Court of Special Sessions
Writing for the CourtROBERT W. CACACE
Citation63 Misc.2d 122,310 N.Y.S.2d 340
Decision Date18 February 1970
PartiesThe PEOPLE of the State of New York on the Information of Patrolman Eric BAUER, v. Peter H. OPPMAN, Defendant.

Page 340

310 N.Y.S.2d 340
63 Misc.2d 122
The PEOPLE of the State of New York on the Information of
Patrolman Eric BAUER,
v.
Peter H. OPPMAN, Defendant.
Court of Special Sessions of Town of Yonkers.
Feb. 18, 1970.

Page 341

Peter J. Hanczor, Asst. Corp. Counsel, Yonkers, for the people.

Albert Gleeson, Yonkers, for defendant.

ROBERT W. CACACE, Judge.

The Defendant is charged with violating Section 42--5 of the Code of the City of Yonkers in that on the 26th day of July, 1969, he fired 'one round from a 22 caliber rifle into the air from the southwest second floor bedroom of his home.'

The Statute reads as follows:

'The firing of a gun or a pistol or any other firearm in the City shall be prohibited.'

At a trial held, without a jury, on December 12, 1969, the arresting Officer testified that he was sent to the area to investigate a report that a gun had been discharged; that he spoke to the Defendant, and that the Defendant admitted that he fired the rifle to scare two men who were near his car.

After a Huntley Hearing, it was determined that the admissions of the Defendant could be received into evidence. There were no witnesses to the act. The Police Officer could only testify as to what was told to him by the Defendant. In addition to the admissions of the Defendant,

Page 342

the expended shell casing and the rifle were offered and received into evidence. The Police Officer also testified that he smelled gun powder on the rifle.

[63 Misc.2d 123] At the close of the People's case, the Defendant moved to dismiss on the ground that the only evidence produced at the trial was the admission or confession of the Defendant, and that by virtue of Section 395 of the Code of Criminal Procedure, this is not sufficient for a conviction in a criminal case.

The Section reads as follows:

'A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefore; but is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.'

The question for the Court is whether the expended shell casing, the rifle and the testimony of the Police Officer that he smelled gun power on the rifle, is sufficient 'additional proof that the crime charged has been committed?'

It is clear that...

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1 practice notes
  • People v. Peterson
    • United States
    • New York County Court
    • April 2, 1970
    ...It appears further here that the People have failed to establish a good cause for the delay of the trial of the above entitled matter. [63 Misc.2d 122] The courts have held that a two year delay is Prima facie unreasonable (People v. Bryant, 12 N.Y.2d 719, 233 N.Y.S.2d 771, 186 N.E.2d 127; ......
1 cases
  • People v. Peterson
    • United States
    • New York County Court
    • April 2, 1970
    ...It appears further here that the People have failed to establish a good cause for the delay of the trial of the above entitled matter. [63 Misc.2d 122] The courts have held that a two year delay is Prima facie unreasonable (People v. Bryant, 12 N.Y.2d 719, 233 N.Y.S.2d 771, 186 N.E.2d 127; ......

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