Opinion
02 Cr. 1328 (SWK)
October 1, 2003
OPINION AND ORDER
On September 3, 2003, this Court held a hearing to determine whether the Defendant, Ronald Daniels, brandished a firearm within the meaning of 18 U.S.C. § 924 (c)(4). Pursuant to 18 U.S.C. § 924 (c)(4), to "brandish" a firearm is, "to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person."
Two witnesses testified before the Court at the September 3, 2003 hearing: Sergeant John Gorman of the New York City Police Department and Kenita Shaw, a resident of the neighborhood where the shooting occurred. The testimony of Sergeant Gorman and Ms. Shaw was diametrically opposed. Sergeant Gorman testified that the Defendant's "gun came up and was pointed directly at me." Transcript, dated September 3, 2003, at 12 ("Tr."), whereas Ms. Shaw testified that she never saw the defendant holding a gun. Tr. at 43. In the face of such conflicting testimony, the Court must inquire into the credibility of the witnesses and the plausibility of their explanations. See generally, In Time Prods, v. Toy Biz, 38 F.3d 660, 665 (2d Cir. 1994) (holding that assessments of witness credibility are peculiarly within the province of the trier of fact).
In his testimony, Sergeant Gorman described his encounter with the defendant in significant detail. Sergeant Gorman noted that when he was chasing the defendant, the defendant was "tugging very hard at his right side waistband." Tr. at 10. Sergeant Gorman also stated that when the defendant vaulted over the fence, there was a firearm visible in his right hand. Tr. at 12. Sergeant Gorman testified that when he noticed the defendant's firearm he yelled, "Gun, gun, gun." Tr. at 12. Sergeant Gorman stated that after yelling at the defendant, the defendant's "gun came up and was pointed directly at me." Tr. at 12. Sergeant Gorman also testified that Mr. Daniels was "looking directly at me" when the gun was pointed at him. Tr. at 14. Sergeant Gorman indicated that when the defendant pointed his gun at him, they were "extremely close." Tr. at 14. Finally, Sergeant Gorman testified that this encounter took place at 3:15 p.m., and that the area was "very well lit." Tr. at 15. None of the responses elicited from Sergeant Gorman on cross-examination contradicted his testimony on direct in any material way.
Following Sergeant Gorman's testimony, the defendant called Ms. Kenita Shaw. Ms. Shaw testified that during the shooting incident, she was running to protect her children. Tr. at 38. Ms. Shaw testified that during the incident, she called her mother. Tr. at 55. Ms. Shaw also testified that she observed the police officer chasing the defendant because she was running right behind them. Tr. at 38. In light of the fact that gunshots were being fired in the vicinity of her young children, and given the physical disparities noted below, the Court finds that Ms. Shaw could not have been simultaneously running at the same rate of speed as Sergeant Gorman and the defendant, taking steps to preserve the safety of her children, and accurately observing the shooting incident.
Notably, both Sergeant Gorman and the defendant appeared to be in very good physical condition and were "running at a fairly quick pace." Tr. at 24. Put as delicately as possible, Ms. Shaw was significantly larger than both men and clearly not in their good physical condition.
A critical aspect of Ms. Shaw's testimony was also inconsistent with established facts. Ms. Shaw described the officer that shot at the defendant as an African-American man, "heayyset with dreads." Tr. at 54-55. Ms. Shaw stated that she knew the man to be a police officer because "he's been around the area a couple of times." Tr. at 54-55. When asked again about the officer's race, Ms. Shaw reiterated that the officer was African-American, stating that, "he was dark." Tr. at 55. Finally, in response to a question, Ms. Shaw stated that at no time during the incident did she see a white police officer. Tr. at 65. Because the officer that shot at the defendant, Sergeant Gorman, is a white man with light-colored hair, and because the incident occurred in broad daylight, the whole of Ms. Shaw's testimony is fundamentally flawed. As such, the Court finds Sergeant Gorman to be substantially more credible and accepts his testimony as persuasive. Accordingly, the Court finds that the defendant brandished the firearm pursuant to 18 U.S.C. § 924 (c) (4).
The Court hereby orders the parties to appear for the sentencing of Ronald Daniels on October 29, 2003 at 10:30 a.m. in Room 906, 40 Centre Street, New York, New York.
SO ORDERED.