Posted on 06/10/2002 9:23:50 PM PDT by Behind Liberal Lines
An adult can be tried on homicide charges when a child finds the adult's gun and kills himself with it, a Brooklyn judge has ruled.
Acting Justice Michael A. Ambrosio has denied Wayne Heber's motion to dismiss serious felony charges stemming from the July 14, 2001, death of his 4-year-old nephew. The boy shot himself in the head after finding a loaded 9-millimeter semi-automatic pistol under a chair cushion where he was watching cartoons on television.
Heber, of Canarsie, was charged with criminal possession of a weapon and tampering with evidence when he turned himself in to police after the shooting. But a grand jury indicted him on much more serious charges: second-degree manslaughter, a Class C felony; criminally negligent homicide, a Class E felony; second-degree reckless endangerment, a Class A misdemeanor, and other charges.
Justice Ambrosio, in People v. Wayne Heber, 8877-2001, filed in Supreme Court, Kings County, Criminal Term Part 19, also granted the prosecution's motion to disqualify Heber's attorney, Edward R. Hammock of Elmont, because he was present when Heber turned himself in to police after fleeing his home, and would be a witness at a pretrial suppression hearing.
Hammock argued that the evidence presented to the grand jury was legally insufficient to support the homicide and reckless endangerment charges. He said the prosecution had failed to establish a sufficient link between his actions and the death of his nephew, Ojagee Heber, in his home.
But the judge's review of the testimony of the five witnesses before the grand jury persuaded him that the jurors could "reasonably conclude that the defendant engaged in conduct that posed a substantial and unjustifiable risk of death [the standard for second-degree manslaughter]." The judge was also persuaded that Heber's conduct constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
"It is a matter of common sense that guns (particularly loaded guns) ought to be placed safely out of the reach of young children," Justice Ambrosio said. "In this case, the defendant, who is a father himself, exercised extremely poor judgment and grossly misused what is undeniably an inherently dangerous instrumentality."
The judge noted that Heber was the only person who knew the gun was in the living room, and failed to warn anyone about its presence there.
Staten Island Case
In another recent case, an adult was prosecuted for leaving a gun unsecured and in a place where his 12-year-old brother found it and accidentally shot his 11-year-old playmate. In that case, the adult, Alex Duenas, was convicted in Staten Island of criminal possession of a weapon and endangering the welfare of a child.
The Appellate Term of the Second Department later vacated the conviction of endangering the welfare of a child, declining to adopt a per se rule that possession of a weapon in a home with a child under 17 years old would make the gun owner guilty of endangering the child. In that case, People v. Alex Duenas, NYLJ, Jan. 28, 2002, p. 17, the gun had been hidden in a table in a closet.
The prosecutor handling the case against Heber, Wanda D'Olivera, was from the Staten Island District Attorney's office because Hammock's wife works for the Brooklyn District Attorney's office, a spokesman for District Attorney Charles J. Hynes said.
"It is a matter of common sense that guns (particularly loaded guns) ought to be placed safely out of the reach of young children," Justice Ambrosio said. "In this case, the defendant, who is a father himself, exercised extremely poor judgment and grossly misused what is undeniably an inherently dangerous instrumentality."
This is just the first step folks.
First we establish the precedent with a case of more egregious neglect (gun under chair). Then we go to guns without trigger locks, then guns that aren't in lock boxes, then guns in the home, etc., etc.
BTW--Look for the prosecution to take a plea to something so this doesn't have to go to appeal and can serve as precedent.
Everyone one is responsible, except the only one who does something wrong.
Call me an extremist, but at times like this I wish we had the death penalty for people like this judge and the members of the grand jury that made this decision possible. They are so stupid that they don't deserve to be allowed to contaminate the human gene pool any further.
I think it is reasonable to expect people to secure their weapons. If you report a weapon you own missing to the police within a reasonable time period, say 24 hours, then you would be held legally harmless. If someone takes your weapon and commits a crime or causes serious injury with it you should be held liable somehow if you cannot prove that you took adequate precautions or that you reported the weapon missing within a reasonable time period. Especially if it gets into the hands of unattended minors there should be some penalty.
Nah, I think I'll take my chances with a tried and
true friend that WILL go boom when the trigger is pulled. Thanks for the post!
Nah, I think I'll take my chances with a tried and
true friend that WILL go boom when the trigger is pulled. Thanks for the post!
However, as the old saying goes, bad cases make bad law.
And the judge in this case sure didn't seem interested in tailoring his decision narrowly to fit the facts. Instead, he offered some fairly sweeping generalizations about the need to lock up guns.
To me, that translates into precedent that will be used to continually expand the restrictions on firearm ownership.
I can see the logical case for indicting the man who hid a loaded gun under a cushion in a house frequented by children. HE WAS NEGLIGENT! It WAS forseeable that a child could get his hands on this gun. He should have kept his gun ON his person where it would truly be conveniently at hand in need... not under a cushion.
What I find shocking is this paragraph...
Justice Ambrosio, in People v. Wayne Heber, 8877-2001, filed in Supreme Court, Kings County, Criminal Term Part 19, also granted the prosecution's motion to disqualify Heber's attorney, Edward R. Hammock of Elmont, because he was present when Heber turned himself in to police after fleeing his home, and would be a witness at a pretrial suppression hearing.
Mr. Heber is going to be deprived of his counsel of choice BECAUSE HIS LAWYER WAS DOING HIS JOB, representing his client when he turned himself in for arrest! An attorney who accompanies his client in an encounter with the police is now at risk of being called AS A WITNESS??? What has happened that suddenly makes him a party to these proceedings other than as an advocate???? What gives the court the power to "disqualify" Heber's attorney???
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.