People v. Patterson

• Decision Date: 28 June 1996
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Simona PATTERSON and Deshawn Smart, Defendants.
• Court: New York Supreme Court

Page 762

646 N.Y.S.2d 762

169 Misc.2d 787

The PEOPLE of the State of New York, Plaintiff, v. Simona PATTERSON and Deshawn Smart, Defendants.

Supreme Court, Kings County.

June 28, 1996.

Joseph Tacopino, Lake Success, for Simona Patterson, defendant.

Trevor Headley, Brooklyn, for Deshawn Smart, defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Theresa Corrigan, of counsel), for plaintiff.

JOHN M. LEVENTHAL, Justice.

The defendants, Simona Patterson and Deshawn Smart, were each charged in an indictment with Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. Simona Patterson was also charged with the crimes of Criminal Facilitation in the Fourth Degree and Tampering with Physical Evidence.

Defendant Smart was convicted of all counts and defendant Patterson was convicted of two counts of the indictment, namely Criminal Facilitation in the Fourth Degree and Tampering with Physical Evidence. This decision expands on two rulings made by the Court during trial--one concerning the request to charge a justification defense to possession of a weapon, and the second concerning the implication of the privilege against self incrimination relating to a police officer's failure to report the discharge of her firearm in violation of police procedure.

The first issue decided was whether defendant Smart was entitled to a charge of justification or in the alternative to a temporary and lawful possession instruction relating to the weapons counts. The second issue determined was whether the People would be allowed to show, as being relevant to the charge of tampering with physical evidence, that defendant Patterson, a probationary police officer, had failed to report the discharge of her police issued firearm.

The pertinent facts are as follows:

On July 12, 1995, defendants were leaving the Marcy Housing projects in the Williamsburg section of Brooklyn when they met the complainant, Ronnie Williams, defendant Smart's uncle. A heated argument ensued. (

1) Defendant Patterson was a probationary police officer who was on maternity leave. Williams testified that Patterson gave Smart her weapon, but Williams never saw the weapon before Smart held it in his hand. Sheneane Bethea, a 21 year old woman who was playing handball nearby at the time of the incident, testified on the defendant's case that she observed Williams place his right hand across his body and under his outer shirt. Bethea further testified that in response to this motion by Williams, she observed Smart place his hand in Patterson's handbag and pull out a gun. Ms. Bethea ran away and did not see any shots fired. The testimony of Williams and a medical expert revealed that Williams had been shot from eight to eleven times in the body, arms, and legs. Ballistic experts testified that the 14 shell casings recovered from the scene were discharged from Patterson's police issued firearm, a 9 millimeter "Glock" handgun. The spent bullets that were recovered from the scene and Williams' body were consistent with being fired from Patterson's weapon. There was not a conclusive match as the bullets were somewhat deformed from impact. Williams and Lori Carrion, a resident of the Marcy houses who did not view the shooting, testified that both defendants fled the scene in an automobile almost immediately. It was established that Patterson failed to report the discharge of her firearm ² and that the firearm when taken from Patterson at the time of her arrest, eight days after the shooting, showed no evidence of discharge, appeared to have been cleaned, and was fully loaded ³.

Smart requested and was granted a justification (self-defense) charge to the jury relating to the attempted murder and assault counts. See Penal Law § 35.15. There was a view of the evidence in the light most favorable to the accused to support the justification charge, at least as to the initial use of the weapon. People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21; People v. Goetz, 68 N.Y.2d 96, 113-15, 506 N.Y.S.2d 18, 497 N.E.2d 41; People v. McManus, 67 N.Y.2d 541, 548, 505 N.Y.S.2d 43, 496 N.E.2d 202; People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188. The Court also charged the jury as to the use of excessive deadly force. People v. Taylor, 92 App.Div. 29, 32-33, 86 N.Y.S. 996.

Smart also requested a jury charge as to temporary and lawful possession relating to the weapons counts. This request to charge was granted and the appropriate law was given to the jury by the Court.

It is clear that justification may excuse the otherwise unlawful use of a weapon, but it is difficult to imagine circumstances where it could excuse the unlawful possession of it. PEOPLE V. ALMODOVAR , 62 N.Y.2D 126, 130, 476 N.Y.S.2D 95, 464 N.E.2D 463;⁴ People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11 [Defense not available to one charged with possession of a weapon, even when element of possessory crime is intent to use weapon unlawfully]. Here Smart contends that his possession of the weapon was lawful. People v. Harmon, 7 A.D.2d 159, 180 N.Y.S.2d 939 [Defendant took weapon from assailant in the course of fight]; Cf. People v. Snyder, 73 N.Y.2d 900, 539 N.Y.S.2d 285, 536 N.E.2d 614 [Charge properly not given even though defendants wrestled gun from complainant during fight as defendants did not report incident to the state police whose barracks were around the corner and who responded to scene within half hour of altercation. Defendants retained gun for at least one additional day]. As the weapon was found eight days later in possession of co-defendant Patterson, who was then a police officer, one may infer that Smart turned the weapon over to Patterson immediately after the subject incident in the absence of any contrary evidence on this issue. People v. La Pella, 272 N.Y. 81, 4 N.E.2d 943. See also People v. Banks, 76 N.Y.2d 799, 559 N.Y.S.2d 959, 559 N.E.2d 653 and People v. Williams, 50 N.Y.2d 1043, 431 N.Y.S.2d 698, 409 N.E.2d 1372. Thus, a reasonable view of the evidence in a light most favorable to the accused supports a charge of temporary and lawful possession.

Defendant Patterson presented a more problematic issue. Patterson argued that the Court should not permit testimony that she failed to report the discharge of her firearm in violation of police regulations requiring her to do so. Patterson contends that the admission of such evidence even if relevant to the Tampering with Physical Evidence charge would be violative of her Fifth Amendment privilege against self-incrimination as to the other crimes charged in the indictment. U.S. Const., 5 Amend. Whenever a Court is confronted with the question of a compelled disclosure that has an incriminatory potential, the judicial scrutiny is invariably a close one. California v. Byers, 402 U.S. 424, 427, 91 S.Ct. 1535, 1537, 29 L.Ed.2d 9. This Court after considering Patterson's claim of privilege allowed such evidence finding no violation of Patterson's right against self-incrimination.

There is no per se rule under the Fifth Amendment prohibiting the use of a defendant's prearrest silence against him. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 [Where there was no governmental action inducing a defendant to remain silent before arrest, there is no Fifth Amendment violation. Nor does the use of prearrest silence to impeach a defendant's credibility deny him fundamental fairness under the Fourteenth Amendment]; People v. Rothschild, 35 N.Y.2d 355, 361 N.Y.S.2d 901, 320 N.E.2d 639 [Police officers under duty to inform superiors of undercover activities]; but see People v. Conyers II, 52 N.Y.2d 454, 459, 438 N.Y.S.2d 741, 420 N.E.2d 933 [Evidence of a defendant's post arrest silence is inadmissible because of state evidentiary rule that the potential for prejudice inherent in such evidence outweighs its probative worth in the absence of unusual circumstances. Such unusual circumstances existed in Rothschild. People v. Conyers I, 49 N.Y.2d 174, 178, 424 N.Y.S.2d 402, 400 N.E.2d 342].

The Supreme Court has consistently struck down as violative of the privilege against self-incrimination the requirement of self reporting from those engaged in conduct "inherently suspect of criminal activities." Marchetti v. United States, 390 U.S. 39, 52, 88 S.Ct. 697, 704, 19 L.Ed.2d 889 [Occupational and excise taxes on gambling required disclosures only of gamblers, the great majority of whom were likely to incriminate themselves by responding]; Grosso v. United States, 390 U.S. 62, 64, 88 S.Ct. 709, 711-12, 19 L.Ed.2d 906 [Gambling registration statute]; Haynes v. United States, 390 U.S. 85, 98, 88 S.Ct. 722, 730-31, 19 L.Ed.2d 923 [Petitioner prosecuted for failure to register a firearm]; Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 [Order requiring registration by individual members of a Communist organization violated the privilege]. Not all affirmative duties to report violate the privilege against self-incrimination. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 [California "hit and run" statute requiring driver of a motor vehicle involved in an accident to stop at the scene and give his name and address does not violate the constitutional privilege against self-incrimination]; People v. Samuel, 29 N.Y.2d 252, 327 N.Y.S.2d 321, 277 N.E.2d 381 [Requirements of New York's "hit and run" statute do not violate State Constitutional right against self-incrimination, N.Y. Const., Art. I, § 6]; Shapiro v. United States, 335 U.S. 1, 32-33, 68 S.Ct. 1375, 1391-92, 92 L.Ed. 1787 [The privilege against self incrimination which exists as to private papers cannot be maintained in relation to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate...