Wrongly Charging Automobile Presumption and Permitting Officers to Narrate Portions of Surveillance Video Results in Weapon Possession Reversal
An individual drove Mr. Lewis and two companions to Mr. Lewis’s stepfather’s home in Queens. A Lincoln Navigator, belonging to one of the companions, was already parked in front of the home. The stepfather’s girlfriend mistakenly believed that the group was there to burglarize the home and called 911. Police arrived and arrested Mr. Lewis and the two companions, who were three blocks away.
When one of the officers returned to the home, he saw a box of shotgun shells in the backseat of the Lincoln Navigator, and following the execution of a search warrant, a gun was found inside the car. The trial court charged the jury with the automobile presumption, and Mr. Lewis was convicted of second-degree weapon possession and unlawful possession of pistol ammunition.
The Appellate Division reversed and ordered a new trial, based upon two errors. First, the automobile presumption should not have been charged to the jury because the prosecution failed to establish beyond a reasonable doubt that Mr. Lewis occupied the Lincoln Navigator. Rather, the surveillance video entered into evidence only showed him briefly leaning his upper body through the open rear passenger side door while standing on the car’s running board. Mr. Lewis therefore never “occupied” the car.
Second, the court erred in permitting two police officers to narrate and offer their opinions about portions of the surveillance videotape. Based upon the cumulative effect of both errors, the conviction was reversed and a new trial was ordered.
Anna Jouravleva represented Mr. Lewis
