People v. Bostic (2025 NYSlipOp 01816): Timing of Firearm Loading in Criminal Possession Charges

Introduction

In People v. Bostic, the Appellate Division, Second Department, addressed multiple issues arising from a July 8, 2007 robbery and shooting in Queens. Defendant Dexter Bostic was tried and convicted of attempted murder in the second degree, two counts of assault in the first degree, two counts of robbery in the first degree, and two counts of criminal possession of a weapon in the second degree. On appeal, Bostic challenged (a) certain convictions on multiplicity grounds, (b) the sufficiency of evidence that a firearm was loaded at the time of possession, (c) Confrontation Clause violations, (d) the omission of an accomplice-instruction, (e) the procedure for showing video evidence to jurors, and (f) his exclusion from a sidebar conference. The court modifies the judgment by vacating and dismissing one assault count and one weapon-possession count, and otherwise affirms.

Summary of the Judgment

• The court found two counts multiplicitous and vacated the first‐degree assault under Count 3 (Penal Law § 120.10[4]).
• It also held that the People failed to prove that the Intratec 9 mm pistol was loaded at the time Bostic possessed it in Queens, vacating Count 9 (Penal Law § 265.03[1][b]).
• All other convictions—attempted murder, one remaining assault, two robberies, and one weapon‐possession count—were affirmed.
• Procedural challenges regarding DNA evidence, jury instructions, video viewing, and defendant’s presence at sidebar were rejected as either unpreserved or without merit.

Analysis

Precedents Cited

The court’s decision rests on established New York authorities:

• Multiplicity: People v. Alonzo (16 NY3d 267) and People v. Lopes (204 AD3d 699) – prohibit multiple convictions for the same act under different subsections.
• Evidentiary Sufficiency: People v. Contes (60 NY2d 620) – standard that evidence be viewed in the light most favorable to the prosecution.
• Loaded-Firearm Requirement: People v. Santiago (195 AD3d 1460) and People v. McFadden (94 AD3d 1150) – prosecution must show the firearm was loaded when possessed, not merely at recovery.
• Confrontation Clause: People v. Cartagena (126 AD3d 913), People v. Gonzalez (120 AD3d 832), People v. Austin (30 NY3d 98) – analysts’ reports and the requirement of live testimony or independent analysis.
• Accomplice Instruction: People v. Dotsenko (150 AD3d 1146) and People v. Tucker (72 NY2d 849) – when a witness may be an accomplice, a jury must be so charged.
• Jury Viewing Evidence: People v. Grant (127 AD3d 990) – rules governing presentation of exhibits to jurors.
• Defendant’s Presence: People v. Robinson (203 AD2d 491), People v. Mullen (44 NY2d 1) – the right to be present only at material stages affecting defense.

Legal Reasoning

1. Multiplicity: The court recognized that counts under §§ 120.10(4) and 160.15(1) arose from the same conduct as other counts, rendering them impermissibly multiplicitous. Consistent with Alonzo and Lopes, it vacated one assault conviction and dismissed the count.

2. Weapon-Possession Sufficiency: Under Penal Law § 265.03(1)(b), possession of a loaded firearm with intent to use it unlawfully is an element. The People proved only that the Intratec pistol was loaded when recovered on July 9, not on July 8 when Bostic possessed it in Queens. Applying Contes, Santiago, and McFadden, the evidence was legally insufficient and required vacatur.

3. Confrontation Clause: Although the admission of a non-testifying analyst’s DNA report violated Bostic’s Sixth Amendment rights (Cartagena, Gonzalez), the error was harmless under the “cumulative evidence” doctrine (Austin, Martinez, Rawlins) because a supervising criminalist conducted her own independent analysis and testified to matching conclusions.

4. Accomplice Instruction: The court evaluated whether Krystal Henry’s testimony required an accomplice charge. Finding no evidence she participated in the crimes, it held no such instruction was mandated (Dotsenko, Lopez, Tatiana N.).

5. Jury Viewing & Defendant’s Presence: Procedural challenges to showing videos to deliberating jurors were unpreserved (CPL 310.20[1], McGuire) or without merit (Grant). Exclusion from a sidebar did not impair Bostic’s ability to defend, as the conference did not involve facts peculiar to him (Robinson, Mullen, White, Crowe, Fabricio, Page).

Impact

This decision clarifies two important principles in New York criminal practice:

1. Prosecutors must show that a firearm was loaded at the time of alleged possession, not merely at recovery. Future charges under § 265.03(1)(b) must address this timing element explicitly.
2. Multiplicity challenges remain a potent tool to prevent duplicative punishments when overlapping statutory subsections criminalize the same act.

The court’s harmless-error analysis reinforces that independent analysis by a testifying expert can cure Confrontation Clause defects, a vital consideration in forensic science litigation.

Complex Concepts Simplified

• Multiplicity: Charging one act under two or more statutes or subsections—impermissible when the elements substantially overlap.
• Legal Sufficiency vs. Weight of Evidence: Sufficiency asks whether any rational jury could find guilt beyond a reasonable doubt; weight asks whether the verdict is against the credible evidence as a whole.
• Harmless Error: A constitutional violation that did not contribute to the outcome because other evidence was overwhelming.
• Confrontation Clause: Guarantees a defendant the right to cross-examine witnesses against him; out-of-court reports by non-testifying analysts may run afoul unless cured by independent testimony.
• Accomplice-in-Fact Instruction: A charge telling jurors that a witness who participated in the crime must be corroborated by other evidence.

Conclusion

People v. Bostic is significant for criminal practitioners and trial courts. It underscores the necessity of proving all statutory elements—especially the loaded status of a firearm at the relevant time—when charging weapon possession. It also affirms the utility of harmless-error doctrine in forensic contexts and reiterates procedural safeguards against multiplicitous convictions. Courts and prosecutors should integrate these lessons into charging decisions, trial strategy, and jury instructions to ensure convictions rest on solid legal foundations.