People v. Pedraza

107 A.D.2d 572, 483 N.Y.S.2d 699, 1985 N.Y. App. Div. LEXIS 42575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1985
• Status: Published

Opinions

— Judgment of the Supreme Court, Bronx County (Daniel Sullivan, J.), rendered July 22, 1982, convicting defendant of the crimes of reckless endangerment in the first degree (two counts) and criminal possession of a weapon in the third degree and sentencing him to three concurrent terms of 1 to 3 years affirmed, and defendant is directed to surrender.

Defendant was indicted for attempted murder in the first degree (two counts), reckless endangerment in the first degree (two counts) and criminal possession of a weapon in the second degree. After a bench trial he was acquitted of the counts of attempted murder. However, he was convicted of the reckless endangerment counts and of criminal possession of a weapon in the third degree, as a lesser included count.

The facts are uncomplicated. In the early evening of April 12, 1981, the police were summoned to an apartment building located at 1144 Ward Avenue with a call of “burglary in progress”. Upon their arrival they saw defendant in a heated dispute with a tenant in the building. Defendant was described as “intoxicated” and “excited”. To break up the dispute the police officers placed defendant in their prowl car and drove off with him. A short distance from the scene of the altercation they removed defendant from the police vehicle and placed him in the custody of a friend who had followed in his car.

Later that evening two police officers, Officers Negron and Dowd, who were on routine radio motor patrol, received a radio run of a man with a gun at 1144 Ward Avenue. The officers, both of whom were in uniform, hastened to the scene. As they approached the vestibule of the building, a woman shouted “the cops” and defendant, who was standing in the hallway, turned around holding a gun in his left hand. As he did so Officer Dowd yelled “Police”. Defendant, pointing his gun in the direction of Dowd, fired one shot. Bystanders scampered for cover. Moments later defendant emerged from the building and fired two shots at Officer Negron, who fired at defendant in return. A brief chase ensued before defendant was subdued. In the process Officer Dowd suffered a broken wrist for which he was subsequently treated at Jacobi Hospital. Upon examination of defendant’s weapon it was ascertained that five shots had been fired from the gun.

The sole point at issue between us and our dissenting brethren is the sentence imposed. Because of defendant’s age and his physical infirmities, the dissenters would disregard the express provisions of section 70.02 (subd 2, par [c]) of the Penal Law which mandates (with certain exceptions which the trial court felt were not pertinent) that a prison sentence must be imposed upon conviction of the crime of criminal possession of a weapon in the third degree, where such conviction is based upon subdivision (4) of section 265.02 of the Penal Law. We are aware that defendant’s disabilities are such as to excite a sense of compassion. Against this, however, must be counterbalanced the fact that defendant was arrested on at least three prior occasions. In each case the original charge involved possession of firearms. The first of these charges was dismissed. The other two involve pleas to lesser charges. In each, he received a conditional discharge. Apparently, defendant has not been persuaded by the lenient treatment hitherto accorded to him that possession of an unlicensed firearm is forbidden by our law. In the case at bar it was only an accident that more serious consequences did not flow from defendant’s actions.

The other issue raised by defendant we find to be without merit. In these circumstances, we are constrained to affirm the judgment. Concur — Sullivan, J. P., Ross and Bloom, JJ.