People v. Bingham
| Court | New York Supreme Court Appellate Division |
| Citation | 692 N.Y.S.2d 823,263 A.D.2d 611 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kenneth BINGHAM, Appellant. |
| Decision Date | 08 July 1999 |
Page 823
v.
Kenneth BINGHAM, Appellant.
Page 824
Kenneth Bingham, Comstock, appellant in person and Susan B. Marhoffer, Ridgefield, for appellant.
Stephen F. Lungen, District Attorney (Stacey Bresky of counsel), Monticello, for respondent.
Before: MERCURE, J.P., CREW III, YESAWICH JR. and GRAFFEO, JJ.
YESAWICH JR., J.
Appeals (1) from a judgment of the County Court of Sullivan County (La Buda, J.), rendered June 3, 1997, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree (two counts) and criminal possession of stolen property in the fourth degree, and (2) by permission, from an order of said court, entered July 28, 1998, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
After observing defendant brandishing a semiautomatic pistol and stating that he would not be taken alive, Kathleen Denman, defendant's sister, fearing for her own safety, notified the State Police. They investigated the matter and, with Denman's assistance, apprehended defendant. At the conclusion of his jury trial, defendant was convicted of two counts of criminal possession of a weapon in the third degree and one count of criminal possession of stolen property in the fourth degree. Sentenced as a persistent felony offender to concurrent indeterminate terms of imprisonment of 15 years to life on each of the three counts of the indictment, defendant appeals.
There is merit to defendant's pro se argument that counts one and two of the indictment were defective. It is bright line law that if the offense charged has an exception contained within the statute, the indictment must contain an allegation that defendant's conduct does not come within the reach of the exception (see, People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312; People v. Best, 132 A.D.2d 773, 774-775, 517 N.Y.S.2d 582). Count one of the indictment charges that defendant violated Penal Law § 265.02(4), which provides that: "A person is guilty of criminal possession of a weapon in the third degree when * * * [h]e possesses any loaded firearm. Such possession shall not * * * constitute a violation of this section if such possession takes place in such person's home or place of business." Inasmuch as the home or business exception is...
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...and derived from personal knowledge enjoys a presumption of reliability and it may form the basis of probable cause." People v. Bingham, 263 A.D.2d 611, 612, 692 N.Y.S.2d 823 (3d Dept.1999) (citations A review of the record below reveals that the police relied on two sworn depositions given......
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