NY Criminal Defense and Presumptions: Criminal Possession of a Weapon – Guns, Pistols and Firearms

With the recent media attention over the gun possession charge against Plaxico Burress (he is back in Manhattan criminal court this coming week, but the matter will be adjourned until September because there is no deal in place), New York criminal defense attorneys, such as the former Manhattan prosecutors and criminal defense lawyers at Crotty Saland PC, are keeping an eye on how the charge of Criminal Possession of a Weapon resolves itself in this case. In fact, Jeremy Saland, one of the founding partners who served for seven years under Robert Morgenthau, has been immersed in the case since its inception as a legal analyst on gun crimes as it relates to Mr. Burress for CNNSI.Com, the New Jesey Star-Ledger, and the AM NY. While Crotty Saland PC has been extremely successful in representing individuals charged with carrying a loaded firearm, the best defense is knowing the law in New York State so that you do not put yourself in a situation where you may violate the law. Therefore, the subject of this entry is going to deal with certain legal presumptions that apply to gun possession that are found in the New York Penal Code.

Pursuant to Penal Law 265.15 there are certain legal presumptions that apply to guns in connection with one’s intent to use that firearm unlawfully as well as defacement of the firearm. While this entry will not deal with every presumption, I will address some of the more common ones as follows:

(1) The presence in any stolen vehicle of any weapon, instrument, appliance or substance specified in sections 265.01, 265.02, 265.03, 265.04 and 265.05 is presumptive evidence of its possession by all persons occupying such vehicle at the time such weapon, instrument, appliance or substance is found.

(2) The presence in an automobile, other than a stolen one or a public omnibus, of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found except under the following circumstances: (a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his or her trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his or her possession a valid license to have and carry concealed the same.

(3) The possession by any person of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that such person defaced the same.

It is important to note that the above-presumptions are just that…presumptions. A Grand Jury or jury at trial is not required to agree with the presumption, but they are legally permitted to do so. Whether these presumptions will have an impact on your particular case must be addressed on an individual basis. At a minimum, however, they certainly have the potential to be devastating. Therefore, it is imperative that you seek experienced criminal counsel to represent you to ascertain and implement the strongest criminal defense to protect your rights, freedom and integrity.

Updated: