By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
An incomplete description of charges and an incorrect definition of “school grounds” were grounds enough for a Brooklyn judge to dismiss two counts of weapons possession against a defendant.
Barsheen Wright was arrested and charged with five counts, including criminal possession of a firearm, criminal possession of a weapon in the second degree, resisting arrest and unlawful possession of marijuana. The charge of criminal possession of a weapon makes it a crime to knowingly and unlawfully possess a loaded firearm within 1,000 feet of school grounds. New York criminal law further allows for an exception where possession takes place in a person's home or place of business.
Brooklyn Supreme Court Justice Sheryl Parker reminded prosecutors that an “indictment must contain a factual allegation of every element of the offense charged.” In Wright’s case, the prosecutors failed to include mention of the law’s exception that one may possess a firearm within 1,000 feet of school grounds if such possession is in said person’s home or business place.
“If an exception to the offense is contained within the statute, ‘the indictment must allege that the crime is not within the exception,’” Wright wrote citing precedent. The prosecutor’s failure to note that Wright’s possession of a firearm did not fall within the exception made the charge “defective” and therefore dismissed.
This was not the only technical error Parker found in the prosecutor’s charging papers. In one instance, the prosecutor failed to include the full title of the criminal law being charged and applied the incorrect statute number. Most significant was the prosecutor’s understanding of “within school grounds.”
A defendant can be charged with criminal possession of a weapon on school grounds when he/she knowingly possesses a firearm in or upon a building or grounds, used for educational purposes…[and] without …written authorization. The prosecutor relied on an outdated definition of “school grounds,” Parker contended.
School grounds, for the prosecutor, were defined as within 1,000 feet of a school’s boundary. Parker noted that the legislature changed the surrounding law with the intent to prevent the use and possession of guns within schools, not merely on the public street outside of a school.
“[E]vidence before the grand jury established that the gun possession was on a public street, not inside a school,” Parker wrote, and therefore was “legally insufficient” to support the charge of gun possession on school grounds. The three remaining charges were left intact.