Monday, December 8, 2008

New York judge dismisses gun charge against 9/11 hero, cites Heller

A Long Island judge has dismissed charges of driving under the influence and illegally possessing a weapon against a 9/11 rescue worker, citing the man's status as an "American hero."

"The Court notes with admiration the Defendant's lengthy service to his country and to his community, and acknowledges the many letters and documents concerning his outstanding service on September 11, 2001 and his injuries," District Court Judge Paul M. Hensley of Suffolk County wrote in People v. McCormack, 06SU51940.

"[T]he Court finds that the Defendant has demonstrated the existence of compelling factors, considerations or circumstances which show that his prosecution or conviction upon the accusatory instruments herein would constitute an injustice."
In separate informations, prosecutors charged McCormack with fourth-degree criminal possession of a weapon and operating a motor vehicle while under the influence of drugs.

He moved to dismiss the charges in the interest of justice.

Judge Hensley, citing McCormack's work at Ground Zero and the symbolic significance of the flag he uncovered, has granted the motion.

The judge listed the 10 factors a court must consider when determining a motion to dismiss in the interest of justice under CPL §170.40, including "the history, character and condition of the defendant" and "any other relevant fact indicating that a judgment of conviction would have no useful purpose."

The judge also cited District of Columbia v. Heller, 128 S.Ct. 2783, the 2008 U.S. Supreme Court decision finding that "the Second Amendment conferred an individual the right to keep and bear arms."

Noting that a court "need not recite an analysis of each of the factors in reaching its determination," Hensley dismissed the gun charges, citing "the totality of the circumstances presented."

Article here. Looks like Mr. McCormack got an early Christmas present.

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