People v. Llewelyn

Decision Date01 July 1987
PartiesPEOPLE of the State of New York v. Bertram LLEWELYN.
CourtNew York Supreme Court

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, for the People by Mitchell Weingarden, Asst. Dist. Atty.

The Legal Aid Society, Brooklyn, for defendant by Susan Lyman.

GOLDMAN, Judge.

"A lie is a lie no matter what its subject" (People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 136 N.E.2d 853), but is it enough to warrant dismissal of an indictment?

Defendant requests permission to [reargue and] renew his prior motion to dismiss the indictment on the ground of insufficient evidence as stated in his original application and on the ground that the grand jury proceeding was defective within the meaning of CPL 210.20(1)(c), as defined by CPL 210.35(5).

Defendant was indicted for the crimes of Criminal Possession of a Weapon in the Third Degree (PL 265.02[4] ) and Criminal Trespass in the First Degree (PL 140.17[2] ).

An earlier motion to inspect the grand jury minutes and dismiss the indictment on the ground of insufficiency of the evidence was denied (Coffinas, J., 4/9/85). Trial on this case was scheduled to commence on January 6, 1987. On January 5, 1987, however, defense counsel returned a telephone call from the district attorney. During that conversation, the district attorney informed defense counsel that the test to determine the operability of the gun was conducted with a test cartridge and not with the single cartridge of ammunition recovered with the gun.

The fact that the ammunition seized from the defendant had never been tested was not revealed to the grand jury. In actuality, the ballistics report (dated 8/20/84) which stated "gun and ammo operable" was admitted into evidence. The direct implication being that the ammunition [recovered with the gun] was, in fact, tested and found to be live. Therefore, defendant contends that the ballistics report present to the grand jury was false (i.e., a lie), and moves to renew his prior motion.

A motion affecting a prior order should be made only to the judge or justice A motion to renew may be based on a material fact which existed at the time the original application was filed but which, for some reason, was unknown to the moving party (Caffee v. Arnold, 104 A.D.2d 352, 478 N.Y.S.2d 683; cf. Patterson v. Town of Hempstead, 104 A.D.2d 975, 480 N.Y.S.2d 899).

who issued the order unless he or she is unable to hear it (Spahn v. Griffith, 101 A.D.2d 1011, 476 N.Y.S.2d 676; CPLR 2221). Therefore, the court contacted the prior justice in this case. He referred the matter back to me stating that the motion should be heard before this court since the recent issues arose here and because the case is in the IAS Part assigned to this court. Thus, the previous justice is unavailable to hear the instant motion.

The January 5, 1987, telephone call from the district attorney informing defense counsel that the ammunition had not been tested until after the defendant was indicted, contrary to the ballistics report, constitutes a material new fact (Metropolitan Marking Corp. v. Basso, 118 A.D.2d 835, 500 N.Y.S.2d 319; Patterson v. Town of Hempstead, 104 A.D.2d 975, 480 N.Y.S.2d 975, supra ). Thus, the motion to renew is granted.

Notwithstanding CPL 255.20[1], the motion is timely. Subdivision 3 of CPL 255.20 states that the court

"... must entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two."

The first opportunity defendant had to question the propriety of the grand jury proceeding on these facts was upon speaking with the district attorney on the eve of trial. Moreover, defendant had every right to rely on the test results as stated in the ballistics report.

The court finds that the instant ground could not have been previously raised with due diligence (People v. Longwood, 116 A.D.2d 590, 497 N.Y.S.2d 450; People v. DeRuggiero, 96 Misc.2d 458, 409 N.Y.S.2d 88; CPL 255.20[3] ). The court will entertain this application on the merits.

Insufficiency of the Grand Jury Evidence

Defendant alleges that the evidence before the grand jury was legally insufficient to sustain the crimes charged. Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission of it (CPL 70.10[1]; People v. Haney, 30 N.Y.2d 328, 335-336, 333 N.Y.S.2d 403, 284 N.E.2d 564; emphasis added).

An element of Criminal Possession of a Weapon in the Third Degree (PL 265.02[4] ) and Criminal Trespass in the First Degree (PL 140.17[2] ) is that the ammunition recovered with the firearm be live (People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823; 1 People v. Daniels, 77 A.D.2d 745, 430 N.Y.S.2d 881; People v. Thomas, 70 A.D.2d 570, 417 N.Y.S.2d 66; People v. Simmons, 55 A.D.2d 879, 390 N.Y.S.2d 423, aff'd 43 N.Y.2d 806, 402 N.Y.S.2d 391, 373 N.E.2d 285; cf. People v. Little, 88 A.D.2d 671, 451 N.Y.S.2d 257; People v. Cotarelo, 129 A.D.2d 725, 514 N.Y.S.2d 489). Since the ammunition here was not tested until after the defendant was indicted 2, the evidence presented to Despite the legal insufficiency of the evidence to support the counts charged, the court cannot dismiss the indictment if the evidence is sufficient to support any lesser included offenses of those counts (People v. Leichtweis, 59 A.D.2d 383, 399 N.Y.S.2d 439; People v. Maier, 72 A.D.2d 754, 421 N.Y.S.2d 272; CPL 210.20[1][b] ). 3 Thus, if Criminal Possession of a Weapon in the Fourth Degree and Criminal Trespass in the Third Degree are lesser included offenses of the crimes charged, the indictment must stand.

the grand jury was legally insufficient to establish a prima facie case of Criminal Possession of a Weapon in the Third Degree and Criminal Trespass in the First Degree (People v. Fraser, 126 A.D.2d 740, 511 N.Y.S.2d 326; People v. DeWitt, 130 A.D.2d 504, 515 N.Y.S.2d 85; People v. Warner-Lambert, 51 N.Y.2d 295, 434 N.Y.S.2d 159, 414 N.E.2d 660; People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, aff'd 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432).

What constitutes a lesser included offense is determined by application of the test in People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376, and People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146. In People v. Glover, supra 57 N.Y.2d at 64, 453 N.Y.S.2d 660, 439 N.E.2d 376, the court stated that the first prong of a two-prong test 4 is whether it is "theoretically impossible to commit the greater crime without at the same time committing the lesser ... and is determined by a comparative examination of the statutes defining the two crimes, in the abstract " (see, also, CPL 1.20[37] ) (emphasis supplied). This test is not met when "the lesser crime requires demonstration of an element or fact not required by the greater" (People v. Green, 56 N.Y.2d 427, 431, 452 N.Y.S.2d 389, 437 N.E.2d 1146, supra ).

The elements of Criminal Trespass in the First and Third Degrees are identical except that the greater also requires that the defendant possess a firearm and live ammunition while committing the trespassory offense. Hence, applying the Glover (supra) impossibility test, this court finds that Criminal Trespass in the Third Degree is a lesser included offense of Criminal Trespass in the First Degree and that there is sufficient evidence to support the lesser included offense.

The court will now address the more difficult issue of whether Criminal Possession of a Weapon in the Fourth Degree is a lesser included offense of Criminal Possession of a Weapon in the Third Degree. Criminal Possession of a Weapon in the Third Degree requires proof that possession of the firearm occurred outside defendant's home or place of business. Criminal Possession of a Weapon in the Fourth Degree, at least according to the wording of the statute, simply requires proof of possession.

In People v. Perez, 128 A.D.2d 410, 512 N.Y.S.2d 695, the Appellate Division, First Department, held that Criminal Possession of a Weapon in the Fourth Degree is a lesser included offense of Criminal Possession of a Weapon in the Third Degree. The court distinguished the contrary holding in People v. Ali, 36 N.Y.2d 880, 372 N.Y.S.2d 212, 334 N.E.2d 11, on the basis that Ali was strictly concerned with "the 'home or place of business' exception contained in PL 265.02[4]" (128 A.D.2d, at 411, 512 N.Y.S.2d This court is bound by the decision in People v. Perez (supra ) absent contrary, higher authority. The case of People v. Rodriguez, 68 N.Y.2d 674, 505 N.Y.S.2d 593, 496 N.E.2d 682, provides such authority since it was not mentioned or discussed in deciding People v. Perez (supra ). 5

                p. 696).   Thus, in applying the impossibility test, the Appellate Division ignored the [home or place of business] exception.  This is apparent from the court's statement that "it is impossible to possess a loaded firearm without concomitantly possessing a firearm" (People v. Perez, 128 A.D.2d 410, 411, 512 N.Y.S.2d 695, 696,supra ).  The statement also reveals that the Appellate Division relied on the facts instead of examining the two statutes in the abstract when applying the impossibility test
                

In People v. Rodriguez, 68 N.Y.2d 674, 505 N.Y.S.2d 593, 496 N.E.2d 682, supra, the court reversed defendant's conviction for Criminal Possession of a Weapon in the Third Degree and dismissed the indictment on the basis of Justice Lazer's dissent (113 A.D.2d 337, 343-348, 496 N.Y.S.2d 448), which stated that "inasmuch as defendant was not charged with...

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3 cases
  • People v. Okafore
    • United States
    • New York Court of Appeals Court of Appeals
    • June 9, 1988
    ...offense. Our point was simply that the two crimes should be deemed the same for double jeopardy purposes ( see, People v. Llewelyn, 136 Misc.2d 525, 531, 518 N.Y.S.2d 881; see also, Costarelli v. Commonwealth, 374 Mass. 677, 373 N.E.2d 1183). We did not mean to suggest that fourth degree po......
  • People v. Johnson
    • United States
    • New York Supreme Court
    • November 20, 1992
    ...668 F.2d 566; United States v. Cathey, 5th Cir., 591 F.2d 268; United States v. Levine, 8th Cir., 700 F.2d 1176; People v. Llewelyn, 136 Misc.2d 525, 518 N.Y.S.2d 881). As the People argued, Mayers' testimony standing alone, if accepted as true, would establish every element of the offense ......
  • People v. Williams
    • United States
    • New York Supreme Court — Appellate Division
    • February 5, 1991
    ...tested belatedly, counsel did not move to dismiss the first count of the indictment before trial. (Compare, e.g., People v. Llewelyn, 136 Misc.2d 525, 518 N.Y.S.2d 881.) By no means can it be said that the prosecutor idly sat by and permitted the trial jury to decide the matter on evidence ......

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