Motion to Dismiss for Failure to State an Offense

[eidolonusa]

Jurisdiction

New York

I was arraigned on felony charge, possession of firearm in NY, no private party, no one was harmed, just police witness. He made his Complaint, from what i comprehend, his plaint must state all elements of the cause of action? I know in Fed court one can motion to dismiss for failure to state an offense (rule worded almost identical to failure to state a claim in Civil)... Am i wrong in concluding that the govt legal system is Adversarial... and the US Supreme Ct says "in an adversarial system there must be an antagonistic assertion that one's right or property was violated" to sustain a case... and this assertion would be found in the Cause of Action... of which all elements would need to be proved to have relief granted.... In NY penal code "General Purpose" it says "to proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests" ... it seemed logical to me that this element is there to satisfy the assertion a right was violated.... Sooo, if the complaint is Missing an element(s) of the cause of action required to be proved in order to be given relief... should it be dismissed? Or... it could be dismissed if all elements of the cause are not presented to the grand jury? What's the difference between hypothetical harm, perceived harm, harm, substantial harm to an interest, if there is no allegation nor witness/complainant of concrete injury or threat or harm? thank you

 

[army judge]

I was arraigned on felony charge, possession of firearm in NY, no private party, no one was harmed, just police witness. He made his Complaint, from what i comprehend, his plaint must state all elements of the cause of action? I know in Fed court one can motion to dismiss for failure to state an offense (rule worded almost identical to failure to state a claim in Civil)... Am i wrong in concluding that the govt legal system is Adversarial... and the US Supreme Ct says "in an adversarial system there must be an antagonistic assertion that one's right or property was violated" to sustain a case... and this assertion would be found in the Cause of Action... of which all elements would need to be proved to have relief granted.... In NY penal code "General Purpose" it says "to proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests" ... it seemed logical to me that this element is there to satisfy the assertion a right was violated.... Sooo, if the complaint is Missing an element(s) of the cause of action required to be proved in order to be given relief... should it be dismissed? Or... it could be dismissed if all elements of the cause are not presented to the grand jury? What's the difference between hypothetical harm, perceived harm, harm, substantial harm to an interest, if there is no allegation nor witness/complainant of concrete injury or threat or harm? thank you

If you're charged with a felony in NY state, you have hired or been appointed counsel.

I suggest you ask your lawyer about anything that baffles or puzzles you.

I'll offer you a hint, generally speaking about indictments or the arrest/warrant and complaint process.

If there are any defects (misspelling, incorrect date of birth, time, or date, etc...; all such defects can be cured) and simple human mistakes or typos alone will NOT cause the charge to be dismissed.

Now, I urge you to use your right NOT to incriminate yourself further and consult ONLY with your attorney, all the while choosing not to discuss any aspect of the charge of case with anyone but YOUR attorney!

 

[eidolonusa]

thank you... but that didn't really address any of my questions, which are not fact specific, but deal only with very basic process and fundamentals ... i would be better off if i had as good as, or better understanding of their system than my lawyer. I would not ask a lawyer to build me home, but i would want to be familiar enough with construction to recognize a contractor who is ineffective or incompetent. thank you

 

[mightymoose]

Whether or not all the elements of an offense are proven is a matter for a jury to consider.
You may believe something is missing, but it isn't for you to decide.
I don't see you being successful with this approach.

 

[zddoodah]

I was arraigned on felony charge, possession of firearm in NY, no private party, no one was harmed, just police witness. He made his Complaint, from what i comprehend, his plaint must state all elements of the cause of action?

Crimes in New York are prosecuted by the district attorney on behalf of the People of the State of New York, not by the police. There are no "causes of action" in criminal cases.

I know in Fed court one can motion to dismiss for failure to state an offense (rule worded almost identical to failure to state a claim in Civil).

The Federal Rules of Criminal Procedure don't apply in state court.

Am i wrong in concluding that the govt legal system is Adversarial.

No.

and the US Supreme Ct says "in an adversarial system there must be an antagonistic assertion that one's right or property was violated" to sustain a case.

I googled the quoted language. Nothing came up (other than a virtually identical post at another site, which I assume you posted). Thus, it appears that the quoted language is not actually a quote from a U.S. Supreme Court opinion. Why would you make this up and attribute it to the Supreme Court?

and this assertion would be found in the Cause of Action... of which all elements would need to be proved to have relief granted.

Ummm...no. A violation of someone else's right or property is not an element that has to be proven in all criminal cases.

You're not getting the case against you dismissed simply by claiming that your crime was victimless.

 

[eidolonusa]

i dont really have an approach, i am learning about the system.... no different than if you were learning about something you have zero experience with. what is the purpose of a motion to dismiss for failure to state a claim or offense for which relief can be granted? from what i gathered, it was designed to reduce the load on courts, rather than push the matter to a jury trial despite plaintiff not even alleging the necessary elements to prove his case. Is it not important to establish a well formulated initial pleading? Or can the elements a plaintiff alleges be amended or supplemented at any time up to or at trial? from what i've read, the fundamentals of the system are more imperative to a case than typos or clerical errors... thank you very much

 

[army judge]

thank you... but that didn't really address any of my questions, which are not fact specific, but deal only with very basic process and fundamentals ... i would be better off if i had as good as, or better understanding of their system than my lawyer. I would not ask a lawyer to build me home, but i would want to be familiar enough with construction to recognize a contractor who is ineffective or incompetent. thank you

I can choose how I use the knowledge obtained from earning my law degree, and the wisdom acquired from decades of practicing law.

Too many cooks spoil the broth, as do too many physicians harm the patient when he or she physician shop.

The same principle applies in the law, besides which i am ethically and legally barred from ADVISING a person who is represented by a lawyer.

You can type all of your questions into any internet search engine and receive a wealth of information with which you can educate yourself.

 

[eidolonusa]

With respect to US Supreme Ct quote...
i was paraphrasing
Poe v Ullman 367 US 497 (1961) : The Court has found unfit for adjudication any cause that "is not in any real sense adversary," that "does not assume the 'honest and actual antagonistic assertion of rights' to be adjudicated -- a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court."

I apologize, i registered and posted for some legal help and information. I must have misunderstood the purpose of this forum. I was not construing it for advice, but perhaps contextual insight into terms like "substantial harm" and "cause of action" and if criminal procedure is really adversarial or just a purely manufactured process of a legislature which can change arbitrarily, and needs not necessarily conform to any other fundamentals or principles.. thank you

 

[mightymoose]

Information is provided here all the time, however the questions you are asking don't really seem to be realistic. It may be in the way you word them, but it does seem you are wanting to find some loophole in the system by defining or redefining terms. When you get these type of responses from multiple people it is a good sign you need to reassess the situation to narrow or clarify your question.
I agree that for the best response these questions you have should be directed to your current counsel.

 

[eidolonusa]

Whether or not all the elements of an offense are proven is a matter for a jury to consider.
You may believe something is missing, but it isn't for you to decide.
I don't see you being successful with this approach.

why is the general purpose of the penal code, which seems to satisfy a basic element of an adversarial system, not a element that must be alleged and proved? The purpose states "to proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests"... this seems pretty important. Why would a legislature state this as a purpose, but not require it be an element of an offense? Crime seems to imply "wrong" perpetrated against another, and failing to make it an element of an offense seems to only cause mass incarceration. If no harm need be proved, wouldn't the 'offense' just be arbitrary rule-making at that point?

 

[eidolonusa]

Information is provided here all the time, however the questions you are asking don't really seem to be realistic. It may be in the way you word them, but it does seem you are wanting to find some loophole in the system by defining or redefining terms. When you get these type of responses from multiple people it is a good sign you need to reassess the situation to narrow or clarify your question.
I agree that for the best response these questions you have should be directed to your current counsel.

this is how my lawyer explained it to me, so i wanted to verify.
i found cause of action at LEGAL DICTIONARY . net Cause of Action - Definition, Elements and Examples which included criminal... and yes, i have no problem with loopholes, that's what the Ameriken system is all about... IRS loopholes, Environmental loopholes, SEC loopholes. the list is long. But usually loopholes are for the very wealthy. And, aren't the first 9 Amendments just loopholes anyway? How many people have harmed or even killed, and got off due to 4th, 5th, 6th amendment loopholes? What moral, ethical person condones jailing someone who has never harmed or threatened a single soul? Does it not ultimately harm society MORE to maintain the planet's largest prison population? who benefits when 40% of prisoner's didn't harm anyone? Their kids? Family? Community? The economy? makes no sense.... it's clearly a very profitable industry for someone

 

[eidolonusa]

There are no "causes of action" in criminal cases.

i found cause of action at LEGAL DICTIONARY . net Cause of Action - Definition, Elements and Examples which included criminal...

 

[army judge]

it's clearly a very profitable industry for someone

If some people would CHOOSE not to commit crimes, no one could profit off of them.

OBEY the laws society has promulgated for its citizens to live productive, secure, sane, safe lives.

There is also an unwritten, common sense compact citizens have with their government, OBEY the laws and retain your FREEDOM.

Disobey the laws, go to trial, governments could incarcerate you taking away your freedoms.

Quite simple, and unlike medicine and physicians, most people can live their entire lives as FREE people never having to seek the services of "greedy" attorneys by simply CHOOSING not to break any of society's laws.

 

[eidolonusa]

There is also an unwritten, common sense compact citizens have with their government, OBEY the laws and retain your FREEDOM.

most people can live their entire lives as FREE people never having to seek the services of "greedy" attorneys by simply CHOOSING not to break any of society's laws.

i Respectfully dissent. Your notion of FREE is likely different than others. If we all followed your proposal and never questioned anything the govt does to us, do you think we would be more free or less free? I live in a very rural area, and the Men around these parts don't clump OBEY and FREEDOM together on one thought. How is a society FREE when you need a license, permit, registration, application to do everything? That's freedom? That's not what a law dictionary says. It says a PRISONER is one deprived of his freedom or liberty. Obeying is not Freedom. Freedom is the ability to do as you please as long as you don't interfere with another's rights or property. As far as the unwritten compact, theories of Hobbes, Locke, or Rousseau, the population was supposed to be promised protection of their property and rights in exchange for some duties... just theories... however, US Sp Ct has ruled numerous times the govt has no duty to protect the citizens... how would the 'compact' still be valid if one party has bowed out? Who's rights are protected in the enforcement of a "possession of firearms" offense? the only one who is ultimately harmed is the accused and his family. again, i Respectfully dissent and thank you for the discussion

 

[Highwayman]

Who's rights are protected in the enforcement of a "possession of firearms" offense? the only one who is ultimately harmed is the accused and his family. again, i Respectfully dissent and thank you for the discussion

You sound like a looney. You need to discuss this with YOUR ATTORNEY. Your charges were explained to you at your arraignment.

 

[mightymoose]

Sounds like another sovereign.

 

[adjusterjack]

Now you're are in troll territory, which means continually arguing the same point just for the sake of arguing and accusing everybody of not responding when they already have responded.

You've been charged with a crime. Possession of a firearm doesn't require any harm to anybody, or anybody else being involved. It just requires possession which, by the way, is a misdemeanor.

That you were charged with a felony means something else is going on per the attached list of statutes:

New York Criminal Gun Laws - NY Gun Possession / Use of a Firearm Penalties - New York Gun Defense Lawyer

Care to explain which section you were charged with and why?

 

[Highwayman]

It just requires possession which, by the way, is a misdemeanor.

It can be charged as a felony, depends on the details, which I think you were alluding to (I didn't read your link).

 

[eidolonusa]

You sound like a looney. You need to discuss this with YOUR ATTORNEY. Your charges were explained to you at your arraignment.

your name-calling demonstrates your immorality and childish retardation... just like govt is essentially immoral... perpetual War, Lies, a nation founded on Genocide and Slavery, surviving on mass incarceration and big pharma chemical pills that cause more harm than good.. you sound like a sadistic, sociopath statist with no regard for life, concerned only with power, money and control.

 

[eidolonusa]

Sounds like another sovereign.

you sound like a cancer on society