I would also suggest that defendant 3 be convicted of the offense of aiding and abetting the offense of attempted possession of dangerous drugs other than for personal consumption (an offense under section 7(a) + (c) of the Dangerous Drugs Ordinance + section 25 of the Penal Law + section 31 of the Penal Law).
In addition, there will be room to convict defendant 3 of the offense of possession of a drug other than for personal consumption under section 7(a)+(c) of the Dangerous Drugs Ordinance.
Before concluding, it should be noted that the murder described in the indictment was committed before the date of the commencement of Amendment 137 to the Penal Law, but in our case, there is no room for discussion of the question of "what is the lenient law with the perpetrator", both because the act of murder falls within the scope of section 301A (a) of the Penal Law – Murder in aggravated circumstances, and because it was done after planning and after an actual process of weighing and formulating a decision to kill the deceased (collective dispute (1)). and because the act was carried out while creating a real danger to the lives of people other than the deceased.
| Ariel Hazak, Judge |
The Honorable Justice A. Infeld:
I agree with the detailed conclusions of my colleague Justice A. Hazak, who, as usual, was able to see in depth and breadth the details of the evidence, and examined the manner in which it was integrated in an exhaustive, complete and convincing manner.
At the same time, without any change in the outcome, I will note a slightly different emphasis in evaluating things.
The defendants' agreement that they actually participated in the series of actions centered on the murder of the deceased by Muhammad constitutes in itself very strong evidence that they were fully aware of the conspiracy, and that they knew very well what Muhammad was planning, in the sense of "they walked together for years unless they were intended." This presumption, at least at the initial level, shifts the burden on the defendants to bring evidence that they were not aware of the plan, and in the case of defendant 1 also that at the critical stage he broke away from Muhammad, and was not present at the time of the murder, as he claims. However, despite the burden of bringing evidence, at the end of the day, the burden of persuasion that there was no doubt of guilt remained on the prosecution's shoulders.