DECISION & ORDER
*1 The defendant moves for an order, pursuant to CPL §§210.20(1)(i) and 210.40, dismissing in the interest of justice the count of attempted murder in the second degree. The People oppose defendant’s motion. Upon review of the parties’ respective papers and the court file, defendant’s motion is granted to the extent that a Clayton hearing is ordered.A grand jury indicted defendant under Kings County Indictment Number 10850/2013, charging him with attempted murder in the second degree and other related offenses for an incident which occurred on December 21, 2013, at the wake for defendant’s aunt, Loretta.The defendant’s trial by jury commenced on or about October 13, 2015. During the trial, the People presented evidence of defendant’s close relationship with Loretta. Prior to her death, Loretta was diagnosed with terminal lung cancer and chose to remain in the care of the complainant, who is her adopted daughter, rather than admit herself to a hospice. After learning that Loretta passed away, the defendant exchanged Facebook messages with another family member, in which he claimed that Loretta had accused the complainant of abusing her, but refused to report the abuse to the authorities. The defendant made it clear that he viewed the complainant as the catalyst for Loretta’s ultimate demise.At the wake for his Aunt Loretta, the defendant grabbed the complainant by the hair, placed a revolver against her head and pulled the trigger, but the revolver, a.38 caliber Smith and Wesson from the early 1900′s, did not fire. According to the People’s ballistics expert, while the gun was otherwise operable, at the time the defendant pulled the trigger, the gun was loaded with incompatible ammunition. In other words, it would have been impossible for the revolver to discharge any of the loaded 9-millimeter Luger bullets.1 When the gun failed to fire, the defendant used it to strike the complainant about her head. The complainant attested that she suffered headaches and a persistent ringing in her ears as a result of the incident. The defendant himself had to be removed to the hospital as a result of being attacked by angry family members who took the gun away from him and left him bleeding, bruised and unable to walk.At the close of evidence, the jury was instructed to consider the following charges: attempted murder in the second degree, attempted criminal possession of a weapon in the second degree, assault in the second degree and criminal possession of a firearm. After three days of deliberation, the jury returned a verdict of guilty as to assault in the second degree and criminal
