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Gun Suppression Hearing Granted on Appeal

New York Criminal Defense attorneys often seek to suppress physical evidence, hear the result of a shotgun shell found on the Defendant, that sometimes require a Criminal Defense Appellate Attorney to pursue the legal error after an unsuccessful trial. Here, the criminal defense attorney moved for suppression of evidence, unsuccessfully, so the trial had to proceed. This case is an example of Criminal Appellate Counsel giving the Defendant another chance to not only negotiate a disposition after serving time but obtain a dismissal after a suppression hearing.

The case People v Kabia, 2021 NY Slip Op 00209 [190 AD3d 1105] (January 14, 2021, Appellate Division, Third Department), states that "In April 2017, police officers with the City of Albany Police Department initiated a traffic stop of a vehicle in which defendant was a passenger. A sawed-off shotgun was ultimately discovered inside the vehicle, which led to the discovery of a shotgun shell on defendant's person. Defendant was consequently indicted on the charge of criminal possession of a weapon in the second degree." Initially, as most criminal defense attorneys tell their clients, New York Criminal Clients should know that drugs (not marijuana) and guns are party items and if you are found in a car with contraband, you can be sure that you will be searched and likely charged with a crime as a result of the discovery of contraband:

Defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. However, defendant's legal sufficiency challenge is not preserved for our review, as his trial motion to dismiss did not include the arguments he now raises on appeal... As relevant here, a person is guilty of criminal possession of a weapon in the second degree when he or she knowingly possesses a loaded and operable firearm outside of his or her home or place of business (see Penal Law § 265.03 [3]). The discovery of a firearm within a vehicle gives rise to a permissive presumption that the firearm was knowingly possessed by all persons in the vehicle at the time of its discovery (see Penal Law § 265.15 [3]; People v Smith, 177 AD3d 1190, 1190 [2019], lv denied 34 NY3d 1163 [2020]; People v Sostre, 172 AD3d 1623, 1625-1626 [2019], lv denied 34 NY3d 938 [2019]).

While the New York Appellate Court does not find that the jury erred, that the criminal verdict was against the weight of the evidence, it notes that the denial of the suppression motion is problematic. The Court notes that "the County Court found that the shotgun shell was discovered on defendant's person during a limited protective pat-down search of defendant, which then provided law enforcement with probable cause to search the vehicle." The Appellate Court disagrees, noting that "this finding is not supported by the evidence presented at the suppression hearing, which demonstrated that the search of the vehicle actually preceded the search of defendant's person and discovery of the shotgun shell." The Appellate Court reverses the county court denial of the Criminal Defendant's Suppression Motion.

People v Kabia, 2021 NY Slip Op 00209 [190 AD3d 1105] (January 14, 2021, Appellate Division, Third Department) concludes that "we will hold the appeal in abeyance and remit the matter to County Court to review the evidence presented at the suppression hearing, consider any alternate bases to suppress the physical evidence and render a new determination on defendant's motion "

f you are facing an accusation, subject to arrest, criminal prosecution or seeking a Criminal Appellate Lawyer, contact Cory H. Morris. Cory H. Morris, attorney and counselor at law; New York and Florida, Injury, Addiction, Accident, Call tthe Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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