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An adult can be tried on homicide charges when a child finds the adult’s gun and kills himself with it, a Brooklyn, N.Y., judge has ruled. Acting Justice Michael A. Ambrosio has denied Wayne Heber’s motion to dismiss serious felony charges stemming from the July 14, 2001, death of his 4-year-old nephew. The boy shot himself in the head after finding a loaded 9-millimeter semi-automatic pistol under a chair cushion where he was watching cartoons on television. Heber was charged with criminal possession of a weapon and tampering with evidence when he turned himself in to police after the shooting. But a grand jury indicted him on much more serious charges: second-degree manslaughter, a Class C felony; criminally negligent homicide, a Class E felony; second-degree reckless endangerment, a Class A misdemeanor; and other charges. Justice Ambrosio, in People v. Wayne Heber, 8877-2001, filed in supreme court, Kings County, Criminal Term Part 19, also granted the prosecution’s motion to disqualify Heber’s attorney, Edward R. Hammock of Elmont, N.Y., because he was present when Heber turned himself in to police after fleeing his home, and would be a witness at a pretrial suppression hearing. Hammock argued that the evidence presented to the grand jury was legally insufficient to support the homicide and reckless endangerment charges. He said the prosecution had failed to establish a sufficient link between his actions and the death of his nephew, Ojagee Heber, in his home. But the judge’s review of the testimony of the five witnesses before the grand jury persuaded him that the jurors could “reasonably conclude that the defendant engaged in conduct that posed a substantial and unjustifiable risk of death [the standard for second-degree manslaughter].” The judge was also persuaded that Heber’s conduct constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation. “It is a matter of common sense that guns (particularly loaded guns) ought to be placed safely out of the reach of young children,” Justice Ambrosio said. “In this case, the defendant, who is a father himself, exercised extremely poor judgment and grossly misused what is undeniably an inherently dangerous instrumentality.” The judge noted that Heber was the only person who knew the gun was in the living room, and failed to warn anyone about its presence there. STATEN ISLAND CASE In another recent case, an adult was prosecuted for leaving a gun unsecured and in a place where his 12-year-old brother found it and accidentally shot his 11-year-old playmate. In that case, the adult, Alex Duenas, was convicted in Staten Island, N.Y., of criminal possession of a weapon and endangering the welfare of a child. The Appellate Term of the 2nd Department later vacated the conviction of endangering the welfare of a child, declining to adopt a per se rule that possession of a weapon in a home with a child under 17 years old would make the gun owner guilty of endangering the child. In that case, People v. Alex Duenas, the gun had been hidden in a table in a closet. The prosecutor handling the case against Heber, Assistant District Attorney Wanda DeOliveira, was from the Staten Island district attorney’s office because Hammock’s wife works for the Brooklyn district attorney’s office, a spokesman for District Attorney Charles J. Hynes said.

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