Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Digaetano

Other Lower Courts

July 31, 2001

The People of the State of New York, Plaintiff,
v.
Joseph Digaetano, Defendant.

COUNSEL

Lewis Mazzone, Jericho, for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Kendra Monte of counsel), for plaintiff.

OPINION

Michael A. Ambrosio, J.

The defendant has filed an omnibus motion seeking various

Page 772

forms of pretrial relief. The motions are decided as follows.

The defendant moves for an inspection of the grand jury minutes and a dismissal of the indictment or reduction of the charges.

On April 14, 2001, four semi-automatic rifles were recovered from the defendant's residence. As a result, the defendant is charged, inter alia, with four counts of criminal possession of a weapon in the third degree, Penal Law § 265.02 (7) (counts one through four). These charges are brought pursuant to recently enacted legislation which makes it a class D violent felony to possess an " assault weapon" as that term is now defined by Penal Law § 265.00 (22). Penal Law article 265 was also amended to include an " assault weapon" in the definition of a " firearm" (Penal Law § 265.00 [3] [e]; L 2000, ch 189, § 8). Accordingly, the defendant is also charged with four counts of criminal possession of a weapon in the fourth degree pursuant to Penal Law § 265.01 (1), for the possession of four " firearms," to wit, four " assault weapons" (counts six through nine). The new assault weapons legislation was enacted to prohibit a specific class of weapons already barred by federal law (see, 18 U.S.C. § 921 [a] [30], [31]; § 922 [v], [w]) thus enabling prosecutors to pursue state charges against those who possess these particular types of weapons (Mem of N.Y. State Senate in support of L 2000, ch 189, 2000 McKinney's Session Laws of NY, at 1642).

As applied here, the People were required to establish by legally sufficient evidence (see, CPL 70.10 [1]) that the four rifles seized from the defendant's residence were " assault weapons" within the meaning of Penal Law§ 265.00 (22). Penal Law § 265.00 (22) defines an " assault weapon," in relevant part, as follows:

" (a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following characteristics:

" (i) a folding or telescoping stock;

" (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;

" (iii) a bayonet mount;

" (iv) a flash suppressor or threaded barrel designed to accommodate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.