" . . . Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact . . . "^[FN1]

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. 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.

On or about September 17, 2022, the NYPD received a "shots fired" notification via ShotSpotter.^[FN2] On or about October 11, 2022, the Defendant was arrested in connection with a [*2]purported shooting and charged with violating Criminal Possession of a Weapon in the Second Degree [P.L. §265.03(3)] among other related charges. Thereafter, the Defendant was arraigned in Bronx Criminal Court and bail was set.

On or about October 14, 2022, the prosecution presented the instant case to the grand jury who returned a true bill. On or about October 25, 2022, the prosecution filed the underlying indictment alleging six counts, to wit: Count I- Criminal Possession of a Weapon in the Second Degree [P.L. §265.03(3)], Count II- Reckless Endangerment in the First Degree [P.L. §120.25], Count III- Criminal Possession of a Firearm [P.L. §265.01-b(1)], Count IV- Reckless Endangerment in the Second Degree [P.L. §120.20], Count V- Criminal Possession of a Weapon in the Fourth Degree [P.L. §265.01(1)], and Count VI- Possession of Ammunition [A.C. §10-131(i)(3)]. On or about October 31, 2022, the Defendant was arraigned on the indictment in Supreme Court, Bronx County, Criminal Term, and his bail conditions were continued.

On or about May 1, 2025, after pre-trial motion practice, this court commenced the trial. On or about May 19, 2025, after conducting voir dire examinations and empaneling the petit jury, the parties delivered their respective opening statements. Thereafter, the prosecution began their case-in-chief and they presented the following pertinent evidence.

The prosecution called Police Officer David De La Cruz ^[FN3] as their first witness. On September 17, 2022, according to Officer De La Cruz he was assigned patrol in the 46th Precinct. Officer De La Cruz testified on that day, he received a police dispatch to respond to 2407 Morris Avenue for potential gunfire, which was detected by ShotSpotter. When he arrived at the location, Officer De La Cruz testified that he canvased for ballistics and interviewed people in the vicinity. After gathering some information, Officer De La Cruz testified that he conducted an interior patrol of the building located at 2407 Morris Avenue where he searched for incriminating evidence. After yielding negative results, Officer De La Cruz testified that he exited the subject building and while conducting further interviews, a fellow Police Officer found ballistics evidence namely three .380 shell casings on the ground.

The three shell casings, according to Officer De La Cruz, were found in the street by several parked vehicles in front of 2407 Morris Avenue. Upon the discovery of the shell casings, Officer De La Cruz testified that the area was secured as a crime scene. Then the Evidence Collection Team and Detectives were called to the area. Officer De La Cruz testified that after the Evidence Collection Team finished their process, the Evidence Collection Team gave the three shell casings to him, and he took the shell casings to the 46th Precinct for vouchering.

The prosecution then called Walter Collier III as their second witness. Mr. Collier testified that he was affiliated with SoundThinking, Incorporated, formerly known as ShotSpotter, Incorporated. According to Mr. Collier, SoundThinking was headquartered in Newark, California and it was a publicly traded private entity. He testified that he was employed by SoundThinking as a forensic service manager. His primary responsibilities included reviewing potential shooting incidents captured by ShotSpotter, creating detailed forensic reports, and providing testimony or explanations concerning those potential shooting incidents.

Mr. Collier explained that the ShotSpotter technology was composed of five primary components containing an array of sensors and microphones that detect loud impulsive sounds. [*3]He further explained that once the ShotSpotter technology detects loud impulsive sounds, it records the sound, determines whether it is actual gunfire based on the analytics in its database, and then it attempts to locate the origin of the loud impulsive sound.

Mr. Collier opined that after reviewing the loud sound recorded on the day of the incident, based on his training and experience, it was consistent with gunfire. Further, Mr. Collier claimed that ShotSpotter could not be triggered by the discharge of a BB gun or an air pistol. However, when cross-examined as to the findings contained in the ShotSpotter report concerning the instant incident, Mr. Collier conceded that the report classified the loud impulsive sound as "other." According to him, such classification was indicative that the ShotSpotter technology to a degree of 99.29 percent confidence, found that the sound it recorded was not consistent with gunfire.

Thereafter, the prosecution called Sergeant Lennin Badia as their third witness. On or about September 17, 2022, according to Sergeant Badia, he was part of the Evidence Collection Team that was called to the incident location at 2407 Morris Avenue. He testified that upon his arrival, he placed numbered cones next to each shell casing on the street in front of 2407 Morris Avenue. He specified that one of the shell casings was found on the street in front of a fire hydrant, another shell casing was found on the street approximately 30 feet away by the rear tire of an SUV, and the last shell casing was found in the middle of the street. In addition, he identified the shell casings as .380 caliber. Furthermore, Sergeant Badia testified that he packaged the shell casings and turned them over to Officer De La Cruz. Finally, when the prosecution played the audio recording of the loud sound detected by ShotSpotter, Sergeant Badia opined that based on his training and experience, it was consistent with gunfire.

Lastly, the prosecution called Detective Julissa Flores as their fourth witness. On or about September 17, 2022, according to Detective Flores, she was assigned to the Detective Squad at the 46th Precinct. She testified that on the day of the incident, she was alerted to a possible "shots fired" at 2407 Morris Avenue. Upon arriving at the location, Detective Flores "confirmed" that shots were fired. Also, she testified that the Officers set up a crime scene around the ballistics evidence recovered. Detective Flores testified that she lifted the shell casings with her pen and determined they were .380 caliber. Further, Detective Flores testified that after taking some photographs of the crime scene, she interviewed Officer De La Cruz concerning his observations. Thereafter, she testified that she attempted to recover video of the incident from 2407 Morris Avenue and the buildings adjacent thereto, but to no avail.

Detective Flores then testified that she returned to the subject location at another time, whereupon she was able to retrieve surveillance videos of the alleged incident from 2407 and 2396 Morris Avenue. On October 11, 2022, after gathering further information, Detective Flores arrested the Defendant. She also testified in general about the racking of a firearm particularly in the context of when a bullet is improperly placed in the chamber of a firearm. In addition, she testified in general regarding the recoil of a firearm. Finally, when the prosecution played the audio recording of the loud sound detected by ShotSpotter, Detective Flores opined that based on her training and experience, it was consistent with gunfire.

In addition, throughout the prosecution's case-in-chief, the following items were entered into evidence: (1) Officer De La Cruz' bodycam footage; (2) Officer De La Cruz' voucher for three shell casings; (3) Pictures of 2407 Morris Avenue; (4) Pictures of the three shell casings; (5) USB of SoundThinking Audio; (6) Surveillance videos depicting the alleged incident and the environs; (7) several still photographs of the surveillance videos; and (8) Pictures of the [*4]Defendant on the day of the arrest.^[FN4]

On or about May 23, 2025, the prosecution rested. Subsequently, the Defense made an application for a trial order of dismissal pursuant to C.P.L. §290.10(1)(a) challenging the legal sufficiency of the charged offenses. This court held its decision in abeyance. Then the Defense rested and renewed the application for a trial order of dismissal. Thereafter, this court granted the Defense's application orally, on the record, with this written decision and order to follow.

A trial order of dismissal may be granted only if the trial evidence is legally insufficient to support the offense charged. See C.P.L. §290.10(1)(a). Evidence is "legally sufficient" when, if accepted as true, it would establish every element of the offense charged. See C.P.L. §70.10(1). In reviewing the legal sufficiency of the evidence, "all questions as to the quality or weight of the evidence must be deferred, the inquiry being whether the competent evidence, if accepted as true, establishes every element of the offense charged." People v. Aleynikov, 148 AD3d 77, 48 N.Y.S.3d 9 (1st Dep't 2017). In deciding the motion, the court must view all of the evidence in the light most favorable to the People. Id at 83.

To establish Defendant's guilt of Criminal Possession of a Weapon in the Second Degree [P.L. §265.03(3)], the prosecution must prove beyond a reasonable doubt that: "(1) the Defendant possessed a firearm; (2) the Defendant possessed the firearm knowingly; (3) the firearm was loaded and operable; and (4) such possession did not take place in his home or place of business..." CJI2d [NY] P.L. §265.03(3), https://nycourts.gov/judges/cji/2-PenalLaw/265/265-03(3)-Not-Hm-Bus.pdf [last visited June 13, 2025]. "Where, as here, there is no gun . . . recovered, those elements may be proved circumstantially through eyewitness testimony and surrounding circumstances." People v. Samba, 97 AD3d 411, 948 N.Y.S.2d 58 (1st Dep't 2012).

Here, the Defense argued that the trial order of dismissal should be granted as the prosecution failed to proffer facts or evidence legally sufficient to establish each and every element of the offenses charged in the indictment. They contended that the prosecution failed to present direct or circumstantial evidence that the Defendant possessed a loaded and operable firearm as required under count I- Criminal Possession of a Weapon in the Second Degree [P.L. §265.03(3)].

Specifically, the Defense posited that there were no firearm or ballistic testing introduced into evidence to establish the element of operability. Moreover, they contended that the prosecution failed to elicit testimony to show what the individual depicted in the surveillance videos, who they claimed to be the Defendant, was holding at the time of the alleged incident, or that the object was in fact a firearm. Additionally, the Defense argued that the prosecution failed to elicit testimony to establish the identity of the individuals depicted in the surveillance videos. Also, they claimed that the surveillance videos failed to depict any images consistent with gunfire such as the ejection of shell casings.

Further, the Defense maintained that under the prosecution's theory of establishing their burden by circumstantial evidence, that they failed to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. The Defense argued that there was no eyewitness testimony of threats made by an individual prior to the alleged shooting, there was no eyewitness testimony regarding observations of the Defendant with a firearm, nor was there eyewitness [*5]testimony regarding the observation of gunfire in real time. Moreover, they asserted that the prosecution did not exclude the possibility that what was fired at the time of the alleged incident could have been a BB gun or air pistol. Furthermore, they postulated that due to the large distance between where the prosecution claimed the shooting occurred, to the location where the shell casings were recovered, undermined the prosecution's claim that the Defendant shot a loaded and operable firearm. Lastly, the Defense argued that there was no evidence presented consistent with gunfire such as bullet holes, injuries or property damage.

The prosecution countered by arguing that considering the evidence in the light most favorable to them, they established legally sufficiency. They relied upon three of their witnesses namely Officer De La Cruz, Sergeant Badia, and Detective Flores to demonstrate that three .380 caliber shell casings were recovered from the location around 2407 Morris Avenue. The prosecution argued that the recovery of the shell casings established that a firearm was loaded and operable. In addition, they argued that based upon Officer De La Cruz', Mr. Collier's, Sergeant Badia's, and Detective Flores' testimony that there was a ShotSpotter activation on the day of the incident, was further evidence that the Defendant fired a loaded and operable firearm. Further, the prosecution relied upon Mr. Collier's testimony that the ShotSpotter activation could not have been triggered by the discharge of a BB gun or air pistol. Moreover, the prosecution relied on Mr. Collier's, Sergeant Badia's, and Detective Flores' testimony that the loud impulsive sound recorded by ShotSpotter was consistent with gunfire based on their training and experience, which established that the Defendant shot a loaded and operable firearm.

The prosecution also focused on the surveillance videos. They claimed that the videos depicted the Defendant holding what appeared to be a black L-shaped object, which they contended was a loaded and operable firearm. Furthermore, they claimed that the videos depicted the Defendant extending his arm into the air three times and shooting what they alleged to be a loaded and operable firearm. The prosecution relied upon Detective Flores' testimony regarding the racking and recoil of a firearm to buttress their claim that the Defendant shot a loaded and operable firearm. Lastly, although the prosecution conceded that no passersby in the surveillance videos appeared startled at the time of the alleged shooting, they nonetheless maintained that because Bronx citizens live in high crime areas they were desensitized to the sound of gunfire. Therefore, the prosecution argued that they circumstantially proffered legally sufficient evidence to sustain each and every element of the offenses charged in the indictment.

This court finds that the prosecution's arguments were without merit. There were no facts or evidence presented at trial, even in the light most favorable to the prosecution, that established each and every element under count I- Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[3]). Here, it was undisputed that the prosecution failed to introduce a firearm into evidence at the time of trial. Although this failure was not fatal to the prosecution's burden of proof in establishing the elements under P.L. §265.03(3), it relegated the prosecution to establish the same circumstantially.

In Samba, the Defendant challenged whether the prosecution proved whether he was holding a loaded and operable gun. See Samba, 97 AD3d 411 at 414. Although there was no gun or ballistics recovered, it was undisputed that the Defendant was holding a gun and that he struck the complainant in the head with it. Id. Further, both the complainant and another eyewitness testified that when the Defendant struck the complainant, the gun "went off," and that they heard a "loud pop" or gunshot. The Appellate Division, First Department, based upon said evidence concluded that circumstantially there was legally sufficient evidence to establish the elements of [*6]"loaded and operable" under P.L. §265.03(3). Id. at 415.

Likewise, in Boyd, although the Defendant appeared on video firing a pistol, but no weapon was recovered, he challenged his weapon possession conviction on the ground that the evidence failed to establish that he fired a loaded and operable firearm. See People v. Boyd, 151 AD3d 641, 58 N.Y.S.3d 43 (1st Dep't 2017). The Appellate Division, First Department, held that the prosecution circumstantially provided legally sufficient evidence establishing that the Defendant fired a loaded and operable firearm based upon: (1) the extensive background information demonstrating that the subject incident was a gunfight between the Defendant and a member of a rival gang; (2) a video showing the Defendant shooting a firearm three times; (3) an Officer's testimony that he heard gunshots; and (4) the police recovery of three cartridges at the scene. Id. at 642.

Thus, the common thread in Samba and Boyd, was although there was no recovery of a firearm, the prosecution introduced eyewitness testimony detailing personal observations of gunfire or the sound of gunfire. Based upon that evidence the Appellate Division, First Department, found circumstantial evidence legally sufficient to establish the elements of "loaded and operable" under P.L. §265.03(3). None of those facts were presented in the instant trial.

Here, critically, none of the four witnesses produced by the prosecution were eyewitnesses or had personal knowledge concerning the alleged incident that transpired on September 17, 2022. The three police witnesses namely Officer De La Cruz, Sergeant Badia, and Detective Flores, all testified that they were not present at the time of the alleged incident but were hailed to the scene, after the fact, in response to a possible "shots fired" activation initiated by ShotSpotter. Similarly, Mr. Collier, the representative of SoundThinking, was not present at the time of the alleged incident.

Additionally, the prosecution's witnesses were not able to provide background information as to the reason why, if any, the Defendant purportedly possessed a firearm or why he allegedly shot three times in the air. Further, the witnesses did not explain how the three shell casings ultimately ended in locations where they were recovered, how the shell casings landed in locations that were at a distance from where the prosecution claimed the shooting occurred, or how the shell casings were found at such a distance from one another. Lastly, the prosecution's attempt to use the loud impulsive sound recorded by ShotSpotter did not, in and of itself, establish the element of "loaded and operable" as required under P.L. §265.03(3), particularly when the ShotSpotter technology did not classify the sound as gunfire.

Furthermore, the prosecution's reliance on the surveillance videos was to no avail. Unlike Boyd, where videotape undoubtedly depicted the Defendant firing a gun, the surveillance videos here lacked any depictions of evidentiary value. The instant surveillance videos were of low quality and did not have sound. Moreover, since none of the prosecution's witnesses were present at the time of the alleged incident, they could not provide a narration of the videos in order to provide useful background information.

Therefore, attempting to discern what the individuals depicted in the videos were doing at the time of the alleged incident was almost an impossible task. More importantly, 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. Furthermore, the videos did not show images consistent with gunfire such as depictions of muzzle flashes or the ejection of cartridges.

Still, the most substantial fact that betrayed the prosecution's position that the Defendant possessed a loaded and operable firearm was the passersby's lack of reaction to the purported [*7]gunfire. Notably, 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. Moreover, 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. All persons, no matter their socioeconomic status or the neighborhoods they hail from will react in fear if they see or hear gunfire. The citizens of the Bronx are no different. To argue otherwise affronts all persons' primeval instinct of survival in the face of a life-threatening situation.

Consequently, the prosecution's failure to present eyewitnesses or probative surveillance videos clearly distinguishes this matter from Samba and Boyd. Thus, this court concludes that the People failed to proffer direct and/or circumstantial evidence legally sufficient to establish each and every element of count I- Criminal Possession of a Weapon in the Second Degree [P.L. §265.03(3)].

This court further concludes that since the balance of the counts in the indictment were premised on the fact that the Defendant possessed a loaded and operable firearm, Count II- Reckless Endangerment in the First Degree [P.L. §120.25]^[FN5] , Count III- Criminal Possession of a Firearm [P.L. §265.01-b(1)], Count IV- Reckless Endangerment in the Second Degree [P.L. §120.20], Count V- Criminal Possession of a Weapon in the Fourth Degree [P.L. §265.01(1)], and Count VI- Possession of Ammunition [A.C. §10-131(i)(3)] must also be dismissed.

Accordingly, it is

ORDERED, that the Defense's application for a trial order of dismissal pursuant to C.P.L. §290.10(1)(a) is granted; and it is further

ORDERED, that the indictment is dismissed in its entirety.

This constitutes the decision and order of the court.