People v. Bieniek
| Decision Date | 16 December 1977 |
| Citation | 60 A.D.2d 777,400 N.Y.S.2d 640 |
| Court | New York Supreme Court — Appellate Division |
| Parties | PEOPLE of the State of New York, Respondent, v. Jakub BIENIEK, Appellant. |
Francis X. Murphy, Buffalo, for appellant.
Edward C. Cosgrove, John De Franks, Buffalo, for respondent.
Before CARDAMONE, J. P., and SIMONS, HANCOCK and DENMAN, JJ.
Defendant has been convicted of unlawful possession of a revolver. He alleges that the possession was justified because he was the object of numerous threats from one Ludwig and others who threatened serious physical harm to him because he had helped the police apprehend Ludwig after a shooting. The shooting occurred on November 7, 1975 and the gun was discovered in defendant's possession as the result of an informer's tip on November 10. Notably, defendant possessed the gun by his own admission on November 6, before the incident with Ludwig and Ludwig remained in police custody after the November 7 incident. Justification may be a defense when there is a danger of "imminent" injury and the "urgency" of avoiding the injury clearly outweighs the "desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. . . ." (Penal Law, § 35.05(2)). Defendant was not confronted with sudden or unexpected circumstances requiring that he act contrary to law to avoid imminent injury to himself. Rather, the threats continued over several days. Defendant neither notified the police of the apprehended danger nor asked for protection. Manifestly, he intended to exercise self help in a non-emergency situation and the court properly refused to charge justification. We have considered the other issues defendant raises concerning the trial and find that none requires a reversal. The case must be remitted, however, for further evidence on whether the gun should have been suppressed.
After receiving information from an unidentified informant that defendant possessed a gun, his vehicle was stopped while traveling on a city street. Officer Stambach, the arresting officer, testified at the suppression hearing that the informant was credible and by his testimony he established that the information was reliable because "self-verifying" (see Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Hanlon, 36 N.Y.2d 549, 369 N.Y.S.2d 677, 330 N.E.2d 631; People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323). This hearsay information was the only basis...
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...that carrying a weapon for self-defense is a defense to a prosecution for carrying a concealed weapon); People v. Bieniek, 60 A.D.2d 777, 778, 400 N.Y.S.2d 640, 641 (1977) (rejecting defendant's contention that his unlawful possession of weapon in anticipations of a future need for self-def......
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People v. Elwell
...court erroneously prevented counsel for defendant from inquiring as to the source of the informant's information (People v. Bieniek, 60 A.D.2d 777, 778, 400 N.Y.S.2d 640, 641). However, in the present case no such judicial ruling impeded defendant's counsel. In fact, since the People failed......