New trial on weapon, arson charges granted by Fourth Department

A state appeals court has reversed weapon and arson charges and granted a new trial because of errors by the trial judge.

Defendant Mustaf Osman, was convicted in February 2014 before Oneida County Court Judge Barry M. Donalty of second-degree criminal possession of a weapon, fifth-degree arson, and resisting arrest.

In a decision released Friday the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed the convictions and granted a new trial.

The charges relate to an incident in which Osman was seen throwing and burning miniature American flags that were staked in the ground, according to the decision.

The Fourth Department ruled, and the prosecutor conceded, that Donalty incorrectly instructed the jury about the presumption in Penal Law Section 265.15 (4) that possession of any weapon is presumptive evidence of intent to use it unlawfully against another.

“The presumption applies only where the defendant possesses the weapon in question,” the Fourth Department wrote.

The prosecutor “did not proceed on any theory that defendant had possession of the weapon at issue,” the panel wrote.

The court ruled that the error was not harmless and “that the court abused its discretion by precluding defendant from calling a proposed witness at trial, namely, a nurse practitioner who treated him at the Mohawk Valley Psychiatric Center prior to the incident, on the grounds that her testimony was not relevant and that defendant failed to give timely notice,” the court wrote.

Osman’s defense lawyer “established that the proposed witness would have provided relevant testimony with respect to his defense and also established good cause for the delay in the notice, and the People failed to establish any prejudice.”

“Based on the two errors discussed above, we reverse the judgment and grant a new trial,” the court wrote.

The Fourth Department also agreed with the defense argument that Donalty should have granted a request for $1,800 for an expert psychologist who would render an opinion on whether Osman was able to form the requisite intent to commit the crimes charged due to his mental illness.

“We conclude that the court abused its discretion by denying defendant’s application on the sole ground that defendant had a retained attorney,” the Fourth Department wrote.

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