Friday, February 27, 2009

Weight of the Evidence Win... Almost.

In People v. Jones, the Third Department took the rare action of reversing a conviction on the grounds that the jury's verdict was against the weight of the evidence. The appellate court determined that the government failed to disprove the defendant's claim of justification. The court said:
"no evidence was presented to counter defendant's and Walker's testimony that Lamphear was the initial aggressor in this attack. In addition, it is uncontroverted that before defendant ever took out the knife, Lamphear had not only repeatedly threatened him, but physically assaulted him and Walker with his fist, and then attacked defendant with a wooden board striking him so hard that he fractured defendant's arm. Moreover, there is no evidence to support the conclusion that defendant had it in his power to retreat before being attacked by Lamphear and prior to his being struck repeatedly with the board. There is also no question that defendant struck Lamphear only once with the knife and that this occurred as defendant was fending off Lamphear's attack and attempting to safely leave the scene (see People v Richardson, 55 AD3d at 935; Matter of Ismael S., 213 AD2d at 169)."
Note the discussion of the defendant's lawful use of the knife. Be sure to read the very last paragraph where it is revealed that the appellate attorney failed to raise any issue arguing that the defendant's use of the knife was not unlawful. The appellate division did not reverse the weapons possession charge because:
"while the mere possession of a pocket knife is not a crime and is only transformed into criminal conduct upon a showing that the weapon was possessed "with intent to use the same unlawfully against another" (Penal Law § 265.01 [2]), we note that defendant has failed to present any specific arguments on this appeal challenging his conviction for criminal possession of a weapon in the fourth degree."