From the point of view of the objective component, i.e., the existence of an intention to kill, the application of the auxiliary tests set out in the case law in our case leads to the conclusion that the presumption of intent should be applied to the defendant, according to which he intended the probable result of his actions - to bring about the death of the complainant.
The defendant's intention to kill to cause the death of the complainant is learned from the following set of facts:
the defendant used a firearm and lethal weapon;
The defendant ambushed the complainant for many minutes and followed him from the barbershop until he reached the playground, where his wife and son were waiting for him;
The defendant fired at least two bullets from the weapon, and as a result, a bullet penetrated the complainant's upper abdomen (upper abdominal cavity) and caused him severe life-threatening injuries. As a matter of fact, the defendant did not direct the shooting at the complainant's lower body. As is well known, the nature of the injury caused to the victim, if any, is not part of the elements of the offense of attempted murder, and the main element is the intention to kill. The nature of the injury can indeed serve as one of the auxiliary tests for proving the presumption of intent, but it is not necessary that in practice severe and life-threatening injury will be caused, and it is not an element that weakens the intensity of the intention.
The shooting was carried out very closely, only about 2 meters away;
The defendant saw that the complainant did not fall to the ground after the shooting, but rather wanted to flee for his life, and he was seen chasing the complainant and running a distance of several meters after him, while trying to make further use of the weapon he was holding in his hand (the accuser provided videos of two different photographic angles of this short chase).
From all of the above, it emerges that the presumption of intention according to which the defendant intended to cause the death of the complainant, the probable result of his actions, exists in his case. Nevertheless, the defendant did not provide any other satisfactory explanation for the aforesaid, and did not bring any evidence to contradict the presumption, but rather gave a sweeping and false denial that he was not present at the scene at all. Hence, the defendant did not succeed in raising any doubt as to his intention to murder the complainant, so that the presumption becomes conclusive.
- Therefore, I found that all the elements of the offense of attempted murder were proven against the defendant, beyond a reasonable doubt.
Serious injury under aggravated circumstances
- The offense of causing serious injury in aggravated circumstances attributed to the defendant is fixed Section 333 of the Penal Law together with Section 335(a)(1) to the Penal Law.
Article 333 The Penal Law states that "Someone who unlawfully injures his friend with severe injury shall be sentenced to seven years in prison".