Homeowner Arrested After Shooting Burglars With Illegal Gun

[Bob]

Someone should FOIA their criminal record and send a response opinion piece to the first news organization that posted the family's "statement".

State Corrections website says she did a year and a half starting in 2010 for Grand Larceny 4th, and then a year and a half starting in 2016 for Attempted Criminal Possession of a Weapon 3rd.

 

[Madmallard]

DA: Actions of Oneida Co. homeowner who killed intruders with illegal gun 'seem justified'

 

[gun_slinger_boy]

We will see but this is not a normal case. It looks like he killed two unarmed people with an illegal gun in ny. The two very well may have thought they were going into an abandoned dump to most likely do drugs in. In this state (in an anti gun county) I don’t see him walking on this.

This is actually a normal case. In most states the police wouldn't charge you with anything in this situation. Zip zilch nada. The problem here is NY.

 

[Phazer]

If he can't afford electric I'm sure he can't afford to pay the states exorbitant fees for a permit to exercise his natural right to carry a tool explicitly granted to us by our constitution.

Agreed. But, to clarify, the natural right to self defense is simply enumerated in The Bill of Rights. According to the framers, such natural rights exist even in the absence of any legal documentation. Ergo, the initial hesitancy of the framers to even create such a list of rights lest some think that the list was meant to be exhaustive and that rights not specified did not still exist.

 

[Toecutter]

Agreed. But, to clarify, the natural right to self defense is simply enumerated in The Bill of Rights. According to the framers, such natural rights exist even in the absence of any legal documentation. Ergo, the initial hesitancy of the framers to even create such a list of rights lest some think that the list was meant to be exhaustive and that rights not specified did not still exist.

Excactly we don't need the second ammendment the government has no right to tell us what we can own or how we live our lives as long as we don't infringe on anyone else's life or liberty. That is what it means to be free. So simple yet so misunderstood.

 

[ECU Pirates]

This is actually a normal case. In most states the police wouldn't charge you with anything in this situation. Zip zilch nada. The problem here is NY.

Most houses have running water, electricity and don’t look abandoned. Many other states also require handguns to be registered. Most houses are not cluttered due to hoarding (making the investigation more complex). This is not a normal case.

 

[fresch]

Most houses have running water, electricity and don’t look abandoned. Many other states also require handguns to be registered. Most houses are not cluttered due to hoarding (making the investigation more complex). This is not a normal case.

Is there a law stating you must have water, power, not look abandoned, cluttered?
Even with all you listed what gives the dead the right to enter the property? They aren't kids fing around, they were hardened criminals who did time and made a fatal mistake.
The case is did the son ever have a pistol permit, if not how would he know or care about FUAC "safe act" and if not the state becomes the body not doing its job.

Yes, I did sleep near a Holiday Inn.

 

[ECU Pirates]

In New York, you don't have a duty to retreat in your own home. Where are you going to retreat to?” Menkin said.

“Juries are instructed as part of the justification defense that people can use deadly force to repel a burglar or a burglary in progress or if they reasonably believe it's a burglary

He won’t face charges if this is all true. My permit class taught us the complete opposite. We were told in ny you have a duty to retreat even in your own home if you safely can. We were also told you can’t shoot to stop a burglary. Totally conflicting information from what our class was told.

 

[ECU Pirates]

Is there a law stating you must have water, power, not look abandoned, cluttered?
Even with all you listed what gives the dead the right to enter the property? They aren't kids fing around, they were hardened criminals who did time and made a fatal mistake.
The case is did the son ever have a pistol permit, if not how would he know or care about FUAC "safe act" and if not the state becomes the body not doing its job.

Yes, I did sleep near a Holiday Inn.

The state police saying it’s an unusual case due to the hoarding and the condition of the house. They say it’s making the investigation more complex. They also say it’s not fit to live in. Yes there are laws for they type of thing.

 

[RomanRider]

The DA was on the radio this morning discussing the case. At this point they are still investigating but so far they've been able to verify much of his story as truth. If they don't find any other holes in his story then it could very well be that the killings were justified. At this point he has not been charged with killing them, only the illegal possession of his father's handgun. DA doesn't agree that it should be a felony but due to the safe act it now is. DA also thinks it's unlikely that he would be convicted on the handgun charge (his words were to that effect but don't quote me). One interesting thing is that the woman was shot both in the front and the back. The man was only shot in the front. They do not have ballistics results back yet so don't know if they were all from the same gun or if the male intruder could have had a gun that maybe he ditched as he ran for help. They also do believe that what the dead's family says that they did think that the house was abandoned. Also the guy is still in jail, but some interesting back story is he's a loner with few local ties, so with his house being investigated he has nowhere else to live. He also has an injury unrelated to this case so while he's in jail he is getting medical attention that he might not have otherwise. DA & lawyer agreed to set $1000 cash bail but for some reason the ADA asked for $10,000, so the DA is trying to fix that too but has to work with Deerfield court to do that. WIBX sometimes posts recordings of their interviews so you may be able to listen to it yourself at some point if the post it on their website.

 

[ECU Pirates]

The DA was on the radio this morning discussing the case. At this point they are still investigating but so far they've been able to verify much of his story as truth. If they don't find any other holes in his story then it could very well be that the killings were justified. At this point he has not been charged with killing them, only the illegal possession of his father's handgun. DA doesn't agree that it should be a felony but due to the safe act it now is. DA also thinks it's unlikely that he would be convicted on the handgun charge (his words were to that effect but don't quote me). One interesting thing is that the woman was shot both in the front and the back. The man was only shot in the front. They do not have ballistics results back yet so don't know if they were all from the same gun or if the male intruder could have had a gun that maybe he ditched as he ran for help. They also do believe that what the dead's family says that they did think that the house was abandoned. Also the guy is still in jail, but some interesting back story is he's a loner with few local ties, so with his house being investigated he has nowhere else to live. He also has an injury unrelated to this case so while he's in jail he is getting medical attention that he might not have otherwise. DA & lawyer agreed to set $1000 cash bail but for some reason the ADA asked for $10,000, so the DA is trying to fix that too but has to work with Deerfield court to do that. WIBX sometimes posts recordings of their interviews so you may be able to listen to it yourself at some point if the post it on their website.

It was four shots with a revolver. One gun involved.

 

[spat]

Many other states also require handguns to be registered.

A few maybe, I think saying "many" is pushing it.

 

[spat]

In New York, you don't have a duty to retreat in your own home. Where are you going to retreat to?” Menkin said.

“Juries are instructed as part of the justification defense that people can use deadly force to repel a burglar or a burglary in progress or if they reasonably believe it's a burglary

He won’t face charges if this is all true. My permit class taught us the complete opposite. We were told in ny you have a duty to retreat even in your own home if you safely can. We were also told you can’t shoot to stop a burglary. Totally conflicting information from what our class was told.

There is a big difference between what you are legally justified in doing, and what is a good idea.

Retreating if possible, even in your own home, and not using deadly force to stop a burglar is not legally required in NY, but it is still advisable unless you are independently wealthy and like funding your lawyers kids college fund.

Your class offered good advice.

 

[Steal2B]

A few maybe, I think saying "many" is pushing it.

Actually very few States register all handguns like New York and Hawaii. If one counts DC, there is three.

Only six states and DC register any firearm (like those dangerous black sporting rifles, "assault pistols", normal capacity magazines, or 50 cal tools).

Fron Gunstocarry.com
"States With Official Gun Registries

• California - The registry is maintained by the California Department of Justice and keeps information on buyers and sellers plus any firearms imported into the state. Information maintained is serial numbers, fingerprints, names, and addresses. The information is collected on handguns and long guns however if a gun was owned before 1991 there is no requirement to register it.
• District of Columbia - All handguns and long guns are required to be registered with the Metropolitan Police.
• Hawaii - All firearms must be registered within a 5 day period from when they are brought into the state or purchased with the county police chief.
• Maryland - Only applies to certain handguns and automatic weapons which are required to be registered with the state police.
• New York - Only applies to handguns which must be registered. There is a fee of $3 for registration and it is an offense to possess an unregistered handgun."

Firearm registration requirements by state - Ballotpedia

 

[Phazer]

He won’t face charges if this is all true. My permit class taught us the complete opposite. We were told in ny you have a duty to retreat even in your own home if you safely can. We were also told you can’t shoot to stop a burglary. Totally conflicting information from what our class was told.

My wife heard the same thing in a course she took. It is completely wrong.

Some "trainers" in New York are perpetuating false information due to ignorance of the actual statute.

I keep a this handy (Article 35 of New York Penal Code):

New York Consolidated Laws, Penal Law - PEN § 35.15 | FindLaw

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force.  Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating;  except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor;  or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30 ;  or​

 

[tapper3]

Article 35 is for everyone. From what I have read, he was justified under the law.

Here's the concern. How much of a prick does the DA want to be? From the sounds of it, maybe not too much.

But if the DA did want to be a prick this is how it could go............

S 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.

This section does state in paragraph 3:

A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.

But now look at the definition of Burglary in the 2nd degree......... S140.25

A person is guilty of burglary in the second degree when he knowingly
enters or remains unlawfully in a building with intent to commit a crime
therein, and when:
2. The building is a dwelling.

The key words are "with intent to commit a crime therein". If intent cannot be proved - and with both subjects dead how can it be proven what their intent was - then the predicate for burglary cannot be sustained. "Intent to commit a crime therein" is a predicate for all levels of burglary... 3rd, 2nd, and 1st degree.

Most people think in terms of "breaking and entering" or burglary having to do with stealing stuff. No, burglary has to do with entering unlawfully with the intention of committing another crime in that building or dwelling --- it could be larceny, could be arson, could be rape or murder.

Lacking that intent all that can be proven is:

S 140.15 Criminal trespass in the second degree.
A person is guilty of criminal trespass in the second degree when:
1. he or she knowingly enters or remains unlawfully in a dwelling

And there is no justification under Article 35 for the use of deadly physical force to prevent or terminate Criminal Trespass. This is where the DA could be a prick if he wanted to. And this is what the subjects' family is alluding to.

Fortunately, it appears, at least so far, the DA is not so inclined.

 

[ECU Pirates]

There is a big difference between what you are legally justified in doing, and what is a good idea.

Retreating if possible, even in your own home, and not using deadly force to stop a burglar is not legally required in NY, but it is still advisable unless you are independently wealthy and like funding your lawyers kids college fund.

Your class offered good advice.

They didn’t offer it as advice. They said it was the law. They might not have actually known the law I guess.

 

[Phazer]

Retreating if possible, even in your own home, and not using deadly force to stop a burglar is not legally required in NY, but it is still advisable unless you are independently wealthy and like funding your lawyers kids college fund.

Never let fear of legal ramifications prevent you from taking action to protect you or your family from imminent, irreversible, harm.

As the old adage goes..."Better to be judged by twelve than carried by six."

If a someone breaks into my house, I plan to "retreat" to my bedroom with my family and wait for the police (who respond quite quickly to alarms). I will not protect property with deadly force. There is almost nothing in my house that a thief would want that I cannot replace. But...if that person kicks that bedroom door, I will respond appropriately. Simple residential interior doors will not protect them from my response.

 

[subsonic]

I’m well aware of that. However was it two against one? Was there any attack? I don’t see this going away if he just started shooting in this state.

As many others have pointed out, there doesn't need to be any attack. Burglary is inherently a violent felony. It is a complete defense to homicide in New York if you are using deadly force to PREVENT or TERMINATE a burglary or attempted burglary, and if you reasonably believe it is necessary. In other words if a reasonable person in your situation believes it is necessary to use deadly force to do so. A reasonable person can usually assume that a stranger breaking into their house uninvited is a burglar, and hasn't just stopped by to say hi. You're under no duty, even in New York, to deescalate a dangerous situation in a burglary where you don't know if the other person is armed and your life could be ended in seconds, or to wait for them to attack.

That's not to say that cops and prosecutors won't second-guess you and make your life difficult, but shooting burglars who are actively breaking into your home is legal in New York. (Of course that's not to say you can shoot them in the back while fleeing or on repeatedly on the ground when they're down and disabled.)

There are all sorts of reasons to be careful anyway. Shooting someone is a big deal and you certainly don't want to shoot a family member you haven't identified, your daughter's boyfriend that she had invited unbeknownst to you, some random neighbor's guest who wandered into the wrong house by mistake (you did lock your doors, right?), etc.

 

[ECU Pirates]

As many others have pointed out, there doesn't need to be any attack. Burglary is inherently a violent felony. It is a complete defense to homicide in New York if you are using deadly force to PREVENT or TERMINATE a burglary or attempted burglary, and if you reasonably believe it is necessary. In other words if a reasonable person in your situation believes it is necessary to use deadly force to do so. A reasonable person can usually assume that a stranger breaking into their house uninvited is a burglar, and hasn't just stopped by to say hi. You're under no duty, even in New York, to deescalate a dangerous situation in a burglary where you don't know if the other person is armed and your life could be ended in seconds, or to wait for them to attack.

That's not to say that cops and prosecutors won't second-guess you and make your life difficult, but shooting burglars who are actively breaking into your home is legal in New York. (Of course that's not to say you can shoot them in the back while fleeing or on repeatedly on the ground when they're down and disabled.)

There are all sorts of reasons to be careful anyway. Shooting someone is a big deal and you certainly don't want to shoot a family member you haven't identified, your daughter's boyfriend that she had invited unbeknownst to you, some random neighbor's guest who wandered into the wrong house by mistake (you did lock your doors, right?), etc.

Yeah as others have pointed out the ccw course many of us have taken us totally wrong. They are flat out incorrect on the article 35 portion. W were taught that you cannot shoot during a burglary without being attacked basically and that we have a duty to retreat in our own homes. That’s what I was basing my option on.

 

[subsonic]

Yeah as others have pointed out the ccw course many of us have taken us totally wrong. They are flat out incorrect on the article 35 portion. W were taught that you cannot shoot during a burglary without being attacked basically and that we have a duty to retreat in our own homes. That’s what I was basing my option on.

I was told similar in a tactical shotgun class (in NY). I was there to learn shooting techniques, not to argue about the law though, so I kept my mouth shut.

 

[Toecutter]

If you were truly in fear of your life you won't be thinking of legal ramifications. If you ever have to take a life in self defence, own it. Just like the police say every time they shoot someone, "I was in fear for my life".

 

[subsonic]

If you were truly in fear of your life you won't be thinking of legal ramifications. If you ever have to take a life in self defence, own it. Just like the police say every time they shoot someone, "I was in fear for my life".

The thing is on forums like this people talk out of both sides of their mouth.

How many people on this forum have commented on news stories saying if you see someone with a gun on them look at you sideways on the street you should shoot them instantly (seriously). In the seconds or minutes involved with an attack or a home invasion it can be pretty damn ambiguous whether and in how much danger your life is. Hesitating is a trade-off between making a mistake you can't undo in attacking or not defending.

It's also simply not true that if you're genuinely in fear of your life you won't think of legal ramifications. Plenty of people will second guess themselves to death every single time unless they train hard on recognizing and reacting to a threat. For most normally-adjusted, moral humans killing does not come easy, even when they are in mortal danger.

And to remind you yet again, in New York, the law for defending a burglary doesn't require fear for your life. Just necessity to prevent or terminate the burglary.

 

[Airborneguy]

Yeah as others have pointed out the ccw course many of us have taken us totally wrong. They are flat out incorrect on the article 35 portion. W were taught that you cannot shoot during a burglary without being attacked basically and that we have a duty to retreat in our own homes. That’s what I was basing my option on.

Because people who don’t regularly work with the law AND all precedent and court cases surrounding various sections cannot just quote the letter of the law with any reasonable possibility of coming close to reality.

When posters here just pull up the various laws and nitpick each word it is - to put it bluntly - a pure waste of time for all of us.

 

[Airborneguy]

I’ll give you a great example.

A few weeks ago my sister and her Gf were assaulted. They are lesbians. When the boy started hitting her, he made a statement about her being a lesbian. The fight though had started over regular teenage issues.

My father and the father of her GF, both retired cops but out awhile, started talking and the other father read the law on hate crime charges. He tried to convince my father to fight with the DA for hate crime charges.

My father called me and I tried to explain why it wasn’t a hate crime even though the letter of the law seemed to say it was. He didn’t believe me so I called my buddy who is a very knowledgeable, experienced ADA in Brooklyn so he could give me a few of the cases which established how the hate crimes laws are applied. With that info, my understanding was proven correct and easily explainable to the two dads.

Precedent drives the application of laws just as much if not MORE than the letter of the law, which you guys always post and then argue over.

 

[ECU Pirates]

Because people who don’t regularly work with the law AND all precedent and court cases surrounding various sections cannot just quote the letter of the law with any reasonable possibility of coming close to reality.

When posters here just pull up the various laws and nitpick each word it is - to put it bluntly - a pure waste of time for all of us.

The worst part is the instructors were all cops.

 

[Doc8404]

Deerfield double-fatal shooting challenges prosecutors

Interesting.

My tax dollars at work.

 

[Airborneguy]

The worst part is the instructors were all cops.

They shouldn’t be teaching those classes then. They problem are “experts” on the handful of of laws most cops encounter regularly but don’t know shit about the majority of the remainder.

 

[Acer-m14]

from what is being said of the classes you all take .. i think the classes should be done by the ADA and the DA and the Judge ( if he/she ) is the one requiring the class to get a PP .. and they should be FUAC .. FREE ..

just like your hunter safety classes are ..

 

[ECU Pirates]

from what is being said of the classes you all take .. i think the classes should be done by the ADA and the AD and the Judge ( if he/she ) is the one requiring the class to get a PP .. and they should be FUAC .. FREE ..

just like your hunter safety classes are ..

They used to bring the da or ada in at some classes to scare people. Or try to scare people. They would basically say if you use it we will prosecute for the most part. A guy I know asked them what their conviction rate was haha