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Old April 7, 2009, 10:43 AM   #1
mikejonestkd
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Rochester, NY man charged with murder, claims self defense

A local story from last weekend:

http://www.msnbc.msn.com/id/30075521/

Quote:
Greece Police were called to Baneberry Way this weekend because they say 17-year-old Christopher Cervini and two other teens were going through unlocked vehicles in that neighborhood.

A neighbor, Roderick Scott, says he called 911, grabbed his gun and went outside. Scott told police he confronted the teens and when he did, Cervini came at him and he fired three shots.
I heard the defense attorney on the radio this morning. The homeowner was awake at 3:30 am and saw three youths going through several cars in the neighborhood. Girlfriend calls 911, he goes outside with a registed handgun to detain the kids. Two kids flee, one apparently comes at the homeowner, three shots fired and a 17 year old kid is dead.

One thing that is very disturbing ( other than the tragic death of a kid over a petty crime ) is that the homeowner has been charged with murder and is already going before a grandjury tomorrow. The defense attorney claims he is being railroaded because the kid was a good kid from a good neighborhood and that the local DA is going to make an example of him..

Please discuss your thoughts on this, and hopefully it can serve as a lesson to remind homeowners to not go outside to defend property in states where it is clearly not allowed....
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Old April 7, 2009, 10:49 AM   #2
Kmar40
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Kid is clearly not a good kid from a good neighborhood.

One less thief. Good job.
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Old April 7, 2009, 10:49 AM   #3
besafe2
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None of us were there to really know what happened, but based on your post if some one was going through cars it disturbs me that he would go outside with a hand gun.
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Old April 7, 2009, 10:51 AM   #4
KLRANGL
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Without knowing all the facts you can only say so much.
Homeowner made a mistake by going outside... Kid made a mistake by moving towards an armed man
Murder no, manslaughter maybe...
Quote:
Kid is clearly not a good kid from a good neighborhood.

One less thief. Good job.
Come on man, you saying you were a perfect kid? Robbing cars definitely deserves more than a slap on the wrist, but to be killed for it?
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Old April 7, 2009, 10:54 AM   #5
mikejonestkd
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Poor decisions on the part of the homeowner IMO:

1. he went outside after he knew the police were on the way.
2. he brought a gun to a situation that gave no indication that it was going to be violent.
3. he went to defend someone else's property ( not justifiable in NYS )
4. he attempted to detain the youths
5. he did not retreat when one youth approached him ( duty to retreat in NYS )


probably a few more bad decisons on his part that I missed..
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Last edited by mikejonestkd; April 7, 2009 at 11:08 AM.
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Old April 7, 2009, 10:54 AM   #6
ar15chase
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If I got somebody trying to steal my car or anything in it I would go outside with a handgun also. I have the right to defend my property. If the guy would have charged at me, I would have fired on him too. For all that guy knew the BG could have had a knife.
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Old April 7, 2009, 10:55 AM   #7
Brian Pfleuger
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He's got a tough road ahead.

Here's the NY law on the subject, so we can keep this informed:

S 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he reasonably
believes such to be necessary to defend himself or a third person from
what he reasonably believes to be the use or imminent use of unlawful
physical force by such other person, unless:
(a) The latter`s conduct was provoked by the actor himself with intent
to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case his
use of physical force is nevertheless justifiable if he has withdrawn
from the encounter and effectively communicated such withdrawal to such
other person but the latter persists in continuing the incident by the
use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is he product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) He reasonably believes that such other person is using or about to
use deadly physical force. Even in such case, however, the actor may not
use deadly physical force if he knows that he can with complete safety
as to himself and others avoid the necessity of so doing by retreating;
except that he is under no duty to retreat if he is:
(i) in his dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter`s direction, acting pursuant to
section 35.30; or
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible sodomy or
robbery; or
(c) He reasonably believes that such other person is committing or
attempting to commit a burglary, and the circumstances are such that the
use of deadly physical force is authorized by subdivision three of
section 35.20.

S 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when he or
she reasonably believes such to be necessary to prevent or terminate
what he or she reasonably believes to be the commission or attempted
commission by such other person of a crime involving damage to premises.
Such person may use any degree of physical force, other than deadly
physical force, which he or she reasonably believes to be necessary for
such purpose, and may use deadly physical force if he or she reasonably
believes such to be necessary to prevent or terminate the commission or
attempted commission of arson.
2. A person in possession or control of any premises, or a person
licensed or privileged to be thereon or therein, may use physical force
upon another person when he or she reasonably believes such to be
necessary to prevent or terminate what he or she reasonably believes to
be the commission or attempted commission by such other person of a
criminal trespass upon such premises. Such person may use any degree of
physical force, other than deadly physical force, which he or she
reasonably believes to be necessary for such purpose, and may use deadly
physical force in order to prevent or terminate the commission or
attempted commission of arson, as prescribed in subdivision one, or in
the course of a burglary or attempted burglary, as prescribed in
subdivision three.
3. A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.
4. As used in this section, the following terms have the following
meanings:
(a) The terms "premises," "building" and "dwelling" have the meanings
prescribed in section 140.00;
(b) Persons "licensed or privileged" to be in buildings or upon other
premises include, but are not limited to:
(i) police officers or peace officers acting in the performance of
their duties; and
(ii) security personnel or employees of nuclear powered electric
generating facilities located within the state who are employed as part
of any security plan approved by the federal operating license agencies
acting in the performance of their duties at such generating facilities.
For purposes of this subparagraph, the term "nuclear powered electric
generating facility" shall mean a facility that generates electricity
using nuclear power for sale, directly or indirectly, to the public,
including the land upon which the facility is located and the safety and
security zones as defined under federal regulations.

S 35.25 Justification; use of physical force to prevent or terminate
larceny or criminal mischief.
A person may use physical force, other than deadly physical force,
upon another person when and to the extent that he reasonably believes
such to be necessary to prevent or terminate what he reasonably believes
to be the commission or attempted commission by such other person of
larceny or of criminal mischief with respect to property other than
premises.

35.30

4. A private person acting on his own account may use physical force,
other than deadly physical force, upon another person when and to the
extent that he reasonably believes such to be necessary to effect an
arrest or to prevent the escape from custody of a person whom he
reasonably believes to have committed an offense and who in fact has
committed such offense; and he may use deadly physical force for such
purpose when he reasonably believes such to be necessary to:
(a) Defend himself or a third person from what he reasonably believes
to be the use or imminent use of deadly physical force; or
(b) Effect the arrest of a person who has committed murder,
manslaughter in the first degree, robbery, forcible rape or forcible
sodomy and who is in immediate flight therefrom.
5. A guard, police officer or peace officer wo is charged with the
duty of guarding prisoners in a detention facility, as that term is
defined in section 205.00, or while in transit to or from a detention
facility, may use physical force when and to the extent that he
reasonably believes such to be necessary to prevent the escape of a
prisoner from a detention facility or from custody while in transit
thereto or therefrom.
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Old April 7, 2009, 10:55 AM   #8
Glenn E. Meyer
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Not enough info. The homeowner will have to demonstrate a lethal threat - but what do we know.
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Old April 7, 2009, 10:58 AM   #9
chemgirlie
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From the news clip:
Quote:
They say there was about 20 feet between the two.
I always thought the 21 foot rule was a good one to follow.

Obviously, the kids weren't "good kids". Last I checked petty thievery took you out of the "good kid" category.

The new clip didn't say anything about the kid having any kind of weapon. If he had a knife/gun/baseball bat I could see this being actual self defense. However, the guy could have easily avoided being in that situation by staying in his house and not going outside to look for trouble (face-palm).

-Thumbs up for having his girlfriend call 911
-Thumbs WAYYY down for going outside looking for trouble

Last edited by chemgirlie; April 7, 2009 at 11:15 AM. Reason: I apparently have an inability to spell properly
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Old April 7, 2009, 11:03 AM   #10
Flat Tire
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were there any witnesses ??????
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Old April 7, 2009, 11:05 AM   #11
Dingoboyx
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Might be a warning for other "good kids"

Not to break into cars.... where were the "good kid's" parents? Why was this "good kid" breaking into cars at 3am? Why was he in a gang? (is 3 a gang?)

A good kid would have been at home in bed, and his good parents would have made sure he was there?

Kids today have all the power and no responsibility, IMO. Yes I feel sorry for the kid and his family, however, home owners getting robbed, I feel sorry for too.

I guess the moral of the story is, if you are going to break into someone's car outside their house at 3am, run away from the owner if he comes out, not AT him

I hope if the home owner was in the right, and gets off..... if he was in the wrong........ Bugga

Not good, condolences to the parents, control your kids would be my advice
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Old April 7, 2009, 12:48 PM   #12
David Armstrong
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Quote:
For all that guy knew the BG could have had a knife.
Few jurisdictions allow the use of deadly force based on "for all he knew the BG could have" as a justification.

As others have said, wrong solution to the problem. The incident could have been handled far better by simply opening the door and yelling "I've called the police, you better get out of here."
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Old April 7, 2009, 12:58 PM   #13
Vanya
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What Glenn said:
Quote:
The homeowner will have to demonstrate a lethal threat - but what do we know.
One thing I do know is that no one deserves to die because they broke into a car. A lethal threat is one thing; lacking that, and based on the information supplied, this is pure vigilantism, and the homeowner deserves whatever he gets.
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Old April 7, 2009, 01:00 PM   #14
Dingoboyx
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True David

Only thing is, some teenagers are big, these days, & if off their face on drugs could run up to the shooter and rip his head off, knife or no knife.

I guess no one but the shooter knows, coz we weren't there. I guess we'll have to wait and see.....
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Old April 7, 2009, 01:01 PM   #15
Swampghost
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A warning shot into the ground might have deterred the kid and would have provided witnesses.

Without knowing all of the circumstances, the HO seems to have provoked the situation.
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Old April 7, 2009, 01:05 PM   #16
Brian Pfleuger
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Quote:
Obviously, the kids weren't "good kids".

You guys just don't understand the modern definition of "good kid".

If they are not/have not:

1) Committed a Columbine-type shooting

2) "Hate mongers" out doing terrible things like Christian evangelism in their neighborhoods

then they are "good kids" in the media circles.
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Old April 7, 2009, 01:05 PM   #17
Housezealot
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I agree its to bad the kid died over something so petty, but...... I hate the idea that the law protects thiefs (and in a lot of cases it does) It just lets criminals feel like they have a safety net while committing crimes, and the idea that its some how worse becuse the kid was seventeen doesn't fit well with me, I was in basic training with several seventeen year olds, the goverment had no problem letting them make the decision to join the army before they were "adults" and many of them faced combat immediatly after turning 18.

Last edited by Housezealot; April 7, 2009 at 01:20 PM.
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Old April 7, 2009, 01:17 PM   #18
Shorts
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Quote:
One thing I do know is that no one deserves to die because they broke into a car. A lethal threat is one thing; lacking that, and based on the information supplied, this is pure vigilantism, and the homeowner deserves whatever he gets.

So then you know the details of how the thief lunged at the homeowner? Fill us in. Can you say with absolutely certainty and fact that the homeowner was not in danger? You know exactly what the homeowner has going through his mind and what he felt at the exact moment the thief lunged at him?


Quote:
A warning shot into the ground might have deterred the kid and would have provided witnesses.

Without knowing all of the circumstances, the HO seems to have provoked the situation.

A warning shot is stupid. One should never fire warning shots for a variety of reasons. Different topic for another thread, but no, no warning shots.


The thief provoked the situation. The HO has every right to protect what is his. The strength of force was his decision he is now defending.


As for the grand jury, they can no bill him. The same way there have been past questionable events, if the jury wants to vote not guilty, they will. From the way the article reads, the neighbors weren't too broke up about the homeowner taking car of the thief. Callus yes, but if all homeowners on jury feel that, well, there it is.

Last edited by Shorts; April 7, 2009 at 01:32 PM.
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Old April 7, 2009, 01:27 PM   #19
ATW525
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Quote:
You guys just don't understand the modern definition of "good kid".

If they are not/have not:

1) Committed a Columbine-type shooting
"Everybody" knows that kids who commit Columbine-type shootings are good kids, too... they're just victims of the "evil guns" that make them do horrible things. :barf:
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Old April 7, 2009, 01:43 PM   #20
cerberus65
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Quote:
no one deserves to die because they broke into a car
The kid didn't die because he broke into a bunch of cars. He died because he was too stupid to run away when discovered.

I'll be curious to hear:
a) if the kid had a weapon
b) if the kid was high on anything
c) if the man had the gun concealed or plainly visible

In general, though, the idea of going out to detain some criminals is a pretty bad idea. The police are empowered and trained to do that. The rest of us, not so much on either count.

I'd be sorely tempted to pocket one of my guns and go out with a camera, though. We're supposed to be the best witnesses possible, right? :-)
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Old April 7, 2009, 01:43 PM   #21
yourang?
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the district attorney handling this case was on the tube with a very strong statement

he said he was not averse to people carrying

he did say that if you choose to carry, you best know the
laws of the state of ny about when to legally use lethal force

as peetzakilla posted above, part 35 of nystate law outlines
when you can and cant escalate to using lethal force

we have to know the law...that is all there is to say

it is not something to run over once or twice....it is something
that we have to read and re-read and digest it so that it becomes
ingrained in our brain

the question isnt: are you willing to accept the responsibility of
using lethal force?

the question first is: do you know when you can legally use it?

even if we do know, (and are justified) there will be lots of action in the courts

(as some one said: every bullet has a lawyer attached to it)
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Old April 7, 2009, 01:45 PM   #22
Shorts
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The gun wasn't used until the thief made a move towards the homeowner.
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Old April 7, 2009, 01:46 PM   #23
OldMarksman
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Quote:
If I got somebody trying to steal my car or anything in it I would go outside with a handgun also. I have the right to defend my property. If the guy would have charged at me, I would have fired on him too. For all that guy knew the BG could have had a knife.
In Texas at night, maybe. I wouldn't. However, this happened in New York. You obviously did not have the benefit of reading mikejonestkd's Post No. 5, which was posted at the same time as yours.

To my knowledge, there are two states that permit the use of deadly force to protect property, other than castle situations when you are inside your dwelling or car: Georgia, and Texas at night. I am not at all sure that someone "going through cars" would meet the standard of necessity. One would have to ask a local attorney.

Whether the deceased was a good kid or not is likely not going to prove relevant to the outcome.

As peetzakilla said, the shooter has a tough road ahead.

This is disturbing; someone has died, and someone has been charged with murder. Both could have been easily avoided by following David Armstrong's advice. This should serve as a reminder that we all need to know the laws in our jurisdictions before arming ourselves.

Here's some relevant advice from another thread on this forum:

http://www.thefiringline.com/forums/...6&postcount=73
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Old April 7, 2009, 01:46 PM   #24
David Armstrong
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Quote:
So then you know the details of how the thief lunged at the homeowner? Fill us in. Can you say with absolutely certainty and fact that the homeowner was not in danger?
I think we can say with near 100% certainty that if the homeowner would have stayed inside and called the police he would not have been in danger. Once again we have an example of the GG turning what was a simple robbery into a gunfight, when there was no need.
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Old April 7, 2009, 01:47 PM   #25
djohn
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Thats why god gave us fingers and man made telephones for things like this.I would have called the police why try to protect a outside material object.


The Home owner was not in immediate danger until he put him self in a position to be in danger by trying to protect a material object that most of us have insurance for.


Was he wrong for defending him selfs, well thats up to the jury know but I dont see this turning out so well for the home owner.


Parents need to take control of there children unless they snuck out while parents sleep but there is solutions for that as well.
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