An alleged member of the Vaughan Road Bloods gang whose gun misfired when he tried to shoot at a police officer who had approached to warn about jaywalking will be transferred to lower security custody.

The young man, who can only be identified as K.H., pleaded guilty in February to attempting to discharge a firearm, possessing a loaded firearm and assaulting a police officer.

Both Crown counsel John Healy and defence lawyer Donald Mcleod have told Superior Court Justice John McMahon they will seek probation for K.H., who cannot be named because he was 17 during the incident.

On Thursday, the judge agreed to order K.H. moved from secure to open custody — akin to a halfway house — in anticipation of his being sentenced to probation next month. Now 19, he has spent 28 months in pre-trial custody.

Toronto police Const. Jimmy DaSilva Cristopulo and two other traffic officers were patrolling the Vaughan Rd. and Oakwood Ave. area on the night of Saturday, Nov. 20, 2010, when they saw the youth and two young men exit a TTC bus and jaywalk across a busy street.

They approached to warn the three males about jaywalking, according to evidence. But the youth fled, holding his right hand to his chest. Christopulo chased him for a block, ordering him to stop and surrender.

K.H. had been stopped 75 to 100 times by police in a year and had no criminal record, Justice Todd Ducharme has stated.

K.H. turned and drew out a 9 mm handgun and fired twice at the officer. But the gun was loaded with .32-calibre bullets, the wrong kind, and misfired, Ducharme has stated.

Cristopulo drew his own sidearm, but saw a woman walking hand-in-hand with a child and pushing a red stroller on the other side of K.H., so he withheld fire.

Cristopulo and another officer then arrested K.H, who resisted fiercely, kicking and punching.

McLeod disputes his client was a member of the Vaughan Road Bloods, saying he got the label by living in the area.

The Crown has argued he was a member, pointing to photos he’d posted of himself and gang members on the Web.

Alex Frederick, then 19, was also arrested in the incident. He pleaded guilty to possessing a loaded prohibited firearm and assaulting a peace officer. He was sentenced to three years.

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Jamal Garrison, then 18, was arrested and discharged, but later pleaded guilty in another shooting and was given 11 years.

Justice Robert Clark recently stated there was enough evidence to conclude Frederick and Garrison were linked to the Vaughan Road Bloods.