People v. Gill
Court: Appellate Division of the Supreme Court of the State of New York; January 22, 1996; New York; State Appellate Court
Convicted of attempted robbery in the first degree and criminal possession of a weapon in the third degree, the defendant was sentenced to concurrent terms of 6 to 12 years and 3½ to 7 years as a second felony offender. The conviction for criminal possession of a weapon was vacated, and that count was dismissed, while the conviction for attempted robbery was affirmed. The case was remitted to the Supreme Court, Bronx County, for further proceedings. The court upheld the denial of the defendant's motion to suppress evidence, finding that the officers had a justified basis to approach the building with guns drawn after hearing shots and being directed to the scene. Observing the defendant's suspicious flight and evasive behavior validated the protective frisk that led to the discovery of the weapon. The jury's credibility findings were given deference, and the evidence supporting the defendant's shared intent to commit robbery was deemed overwhelming, with the verdict not being against the weight of the evidence. Although the prosecutor made improper references regarding an uncalled "inside" man and introduced hearsay testimony related to this person, these were considered harmless errors. However, testimony confirming the presence of this individual at the robbery scene was permitted as it contributed to the narrative regarding security measures. The conviction for criminal possession of a weapon was reversed due to a jurisdictional defect. The indictment charged the defendant under Penal Law § 265.02 (4) without establishing the requisite prior conviction or the specific element that the weapon was not possessed in the defendant’s home or business, which had not been pleaded or proved. The court dismissed this charge, concluding that the trial court's submission of this theory constituted an impermissible amendment to the indictment. Other claims raised by the defendant, including a speedy trial assertion, were found to be without merit.