People v. Ali

Appellate Division of the Supreme Court of New York

People v. Ali

44 A.D.2d 232, 354 N.Y.S.2d 426, 1974 N.Y. App. Div. LEXIS 5210

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 1974

StatusPublished

Cited by4 cases

This text of 44 A.D.2d 232 (People v. Ali) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Ali, 44 A.D.2d 232, 354 N.Y.S.2d 426, 1974 N.Y. App. Div. LEXIS 5210 (N.Y. Ct. App. 1974).

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Opinions

Lane, J.

Defendant, Nasar Ali, owned a grocery store in upper Manhattan. On September 19, 1971, the defendant’s estranged wife, Frances, was driven to the store by a friend of the family. Mrs. Ali entered the store to retrieve a television set. The Alis had words and Mrs. Ali left the store and put the television set in the back of the station wagon. While she [233]*233was re-entering the station wagon, she heard shots and lifted her head to see what was happening. Her curiosity was rewarded with a bullet wound in the head. The defendant was arrested immediately thereafter and the indictment resulting from this incident charged the defendant, inter alia, with the crimes of attempt to commit the crime of murder, attempt to commit the crime of assault in the first degree, and possession of a weapon as a felony.

At the trial, the eyewitness testimony was in unanimity that the defendant fired the gun and that he did so while outside his store. The jury verdict clearly indicated that the testimony of the eyewitnesses was believed. While the defendant was found guilty only of possession of a weapon and acquitted of the other charges, it must be pointed out that at the time the verdict was accepted by the court, the jury was still undecided on one count charging the defendant with the crime of attempt to commit the crime of assault in the first degree.

The court, after accepting the verdict on the other counts about which the jury was unanimous, then inquired whether additional deliberation would resolve the doubts which the jury still had about the count remaining. When the jury answered in the negative and the Assistant District Attorney stipulated that the defendant would not be reprosecuted on the assault charge, the verdict was accepted and the case was concluded.

Clearly, therefore, the debate of the jury was over the degree of injury inflicted and not any dispute over the facts of the occurrence itself.

Under the facts as revealed by the trial testimony, therefore, it was totally unnecessary for the trial court to charge the jury with regard to the exception in the statute which states possession of a weapon in a home or business is not a felony but a misdemeanor (Penal Law, § 265.05, subd. 2).

A trial court, even after a request by counsel, is not required to instruct the jury on the elements of a crime which has not been proven under any view of the facts. This is true whether the request involves a lesser-included crime (cf. CPL 300.50) or whether it involves a statutory exception such as in the case at bar (United States ex rel. Presenzano v. Deegan, 294 F. Supp. 1347; cf. People v. Anthony, 21 A D 2d 666).

Accordingly, the conviction of the defendant of the crime of possession of a weapon as a felony should be affirmed.

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Lane, J.

Defendant, Nasar Ali, owned a grocery store in upper Manhattan. On September 19, 1971, the defendant’s estranged wife, Frances, was driven to the store by a friend of the family. Mrs. Ali entered the store to retrieve a television set. The Alis had words and Mrs. Ali left the store and put the television set in the back of the station wagon. While she [233]*233was re-entering the station wagon, she heard shots and lifted her head to see what was happening. Her curiosity was rewarded with a bullet wound in the head. The defendant was arrested immediately thereafter and the indictment resulting from this incident charged the defendant, inter alia, with the crimes of attempt to commit the crime of murder, attempt to commit the crime of assault in the first degree, and possession of a weapon as a felony.

At the trial, the eyewitness testimony was in unanimity that the defendant fired the gun and that he did so while outside his store. The jury verdict clearly indicated that the testimony of the eyewitnesses was believed. While the defendant was found guilty only of possession of a weapon and acquitted of the other charges, it must be pointed out that at the time the verdict was accepted by the court, the jury was still undecided on one count charging the defendant with the crime of attempt to commit the crime of assault in the first degree.

The court, after accepting the verdict on the other counts about which the jury was unanimous, then inquired whether additional deliberation would resolve the doubts which the jury still had about the count remaining. When the jury answered in the negative and the Assistant District Attorney stipulated that the defendant would not be reprosecuted on the assault charge, the verdict was accepted and the case was concluded.

Clearly, therefore, the debate of the jury was over the degree of injury inflicted and not any dispute over the facts of the occurrence itself.

Under the facts as revealed by the trial testimony, therefore, it was totally unnecessary for the trial court to charge the jury with regard to the exception in the statute which states possession of a weapon in a home or business is not a felony but a misdemeanor (Penal Law, § 265.05, subd. 2).

A trial court, even after a request by counsel, is not required to instruct the jury on the elements of a crime which has not been proven under any view of the facts. This is true whether the request involves a lesser-included crime (cf. CPL 300.50) or whether it involves a statutory exception such as in the case at bar (United States ex rel. Presenzano v. Deegan, 294 F. Supp. 1347; cf. People v. Anthony, 21 A D 2d 666).

Accordingly, the conviction of the defendant of the crime of possession of a weapon as a felony should be affirmed.

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Bluebook (online)

44 A.D.2d 232, 354 N.Y.S.2d 426, 1974 N.Y. App. Div. LEXIS 5210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ali-nyappdiv-1974.

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