NY state judge tosses gun case over lack of evidence

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A state Supreme Court Justice in the Bronx has tossed a gun conviction because of a lack of evidence.

In September 2022, police received a “shots fired” notification via ShotSpotter. On Oct. 11, 2022, defendant Ronnie Cabrera was arrested.

Cabrera was indicted on charges of second-degree criminal possession of a weapon, first-degree reckless endangerment, criminal possession of a firearm, second-degree reckless endangerment, fourth-degree criminal possession of a weapon, and possession of ammunition.

At his trial, which started on May 1, the prosecution called several police officers to testify, along with an employee of SoundThinking Inc., the company formerly known as ShotSpotter.

Police found shell casings on the ground near where the gun was allegedly fired. The forensic service manager of SoundThinking testified that, in his opinion, the loud sound recorded on the day of the incident was consistent with gunfire.

But on cross-examination he conceded that the system report classified the sound as “other.” He stated that the technology, to a degree of 99.29% confidence, found that the sound it recorded was not consistent with gunfire.

One police officer testified that one shell casing was found on the street in front of a fire hydrant, another casing was found on the street about 30 feet away, and the last casing was found in the middle of the street.

Police retrieved surveillance videos of the location which they claimed showed Cabrera firing the gun.

After the prosecution rested, Cabrera’s trial attorney made an application for a trial order of dismissal under Criminal Procedure Law Section 290.10(1)(a) challenging the legal sufficiency of the charged offenses.

After state Supreme Court Justice Raymond L. Bruce reserved decision, the defense rested and renewed the application for a trial order of dismissal, which Bruce ultimately granted.

“The germane issue in this trial is whether the weight of the facts and evidence presented by the prosecution was legally sufficient to sustain each and every element of the offenses charged in the indictment or any lesser included offenses therein,” Bruce wrote.

“This court holds that, in the absence of a firearm being introduced into evidence, coupled with the prosecution’s failure to present eyewitnesses or surveillance videos clearly depicting the defendant discharging a loaded and operable firearm, renders the evidence presented at trial wanting. Thus, the indictment must be dismissed,” he wrote.

To establish defendant’s guilt of second-degree criminal possession of a weapon, the prosecution must prove beyond a reasonable doubt that: The defendant possessed a firearm; the defendant possessed the firearm knowingly;  the firearm was loaded and operable; and the possession did not take place in his home or place of business.

When no gun is recovered, those elements can be proved circumstantially through eyewitness testimony and circumstances.

“It was undisputed that the prosecution failed to introduce a firearm into evidence at the time of trial,” Bruce wrote.

Cabrera’s lawyer argued that the prosecution failed to present facts or evidence legally sufficient to establish each and every element of the offenses.

“There were no facts or evidence presented at trial, even in the light most favorable to the prosecution, that established each and every element,” Bruce wrote.

None of the four witnesses produced by the prosecution were eyewitnesses or had personal knowledge concerning the alleged incident, according to the decision.

The prosecution witnesses provided no information about why Cabrera possessed a firearm or why he allegedly shot three times in the air. And the witnesses did not explain why the shell casings were so far apart and away from where the shooting allegedly occurred.

The surveillance videos were low quality and did not have sound. None of the prosecution’s witnesses were present at the time of the alleged incident, so they could not provide a narration of the videos to provide any useful background information.

“Attempting to discern what the individuals depicted in the videos were doing at the time of the alleged incident was almost an impossible task,” Bruce wrote.

“It could not be discerned what object the person who the prosecution claimed to be the defendant was holding at the time of the alleged incident … The videos did not show images consistent with gunfire such as depictions of muzzle flashes or the ejection of cartridges,” Bruce noted.

The most substantial fact was the passersby’s lack of reaction to the supposed gunfire, Bruce wrote.

“Not one of the passersby reacted as if they were startled or scurried away in fear at the time of the alleged shooting. This seriously undermined the prosecution’s claims that the defendant shot a loaded and operable firearm,” he wrote.

“The prosecution’s argument that the passersby’s lack of a reaction was due to their exposure to violence in high crime neighborhoods in the Bronx was frankly illogical,” Bruce wrote.

Bruce ruled that the prosecution failed to present evidence legally sufficient to establish each and every element of second-degree criminal possession of a weapon.

Because the other charges hinged on that count, the other charges must also be dismissed, Bruce ruled.

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