As I have noted in the past, possession of contraband, whether it is narcotics or a loaded firearm, may be constructively possessed or based on a legal presumption found in the New York Penal Law. In the area of Criminal Possession of a Weapon in the First, Second, Third and Fourth Degrees, pursuant to New York Penal Law sections 265.04, 265.03, 265.02 and 265.01 respectively, that legal presumption is codified in New York Penal Law section 265.15. Although subject to certain nuances which must be addressed in each case by your criminal defense attorney, the following is one specific legal presumption found in New York Penal Law 265.15(3) as it relates to this blog entry and a recent court decision:
“The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, large capacity ammunition feeding device, defaced firearm, defaced rifle or shotgun, defaced large capacity ammunition feeding device, firearm silencer, explosive or incendiary bomb, bombshell, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack, plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub or slungshot 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.”
The presumption above is relatively clear, if not long and wordy. If there is a loaded firearm, or any weapon described above, in a non-stolen vehicle, subject to the exceptions, everyone can be charged for possessing that weapon. A natural question that follows this presumption is as follows: What if a weapon is discarded from the vehicle while the police are in pursuit? Would the “car presumption” apply if the weapon is no longer in the vehicle at the time of the recover? Could all those in the vehicle be charged based on that presumption? According to a Nassau County Supreme Court Justice, the answer is “yes.”
In People v. Smith, 2089N-09, decided December 21, 2009, three individuals were arrested after police responded to gunshots and saw, among other things, two individuals next to a car. After being ordered to “freeze,” the two men jumped in the car and sped off. Ultimately, the police stopped the car and the driver exited as well as one of the passengers after being ordered to do so. A third individual inside the car stepped out as well. At that time, the officers heard the sound of a metal object, a gun, hit the ground. The police recovered the gun. Ultimately, all of the defendants were charged in the possession of the firearm despite the fact that it was one of the passengers that threw the gun out of the vehicle and it was recovered outside of the vehicle as well. Other issues such as “abandonment” aside, counsel for one of the defendants argued that the “car presumption” should not apply because the recovery of the weapon was not in the vehicle.
In response to this argument, the court stated as follows:
“As to defense counsel’s argument that the car presumption should not apply in this case, this Court finds that the gun was inside of the vehicle when the defendants were stopped. These facts are sufficient to support the People’s theory of constructive possession of the gun by all of the defendants. (See People v. Velez, 100 AD2d 603 [2nd Dept 1984]. Consequently, defendant’s motion regarding the car presumption is denied.”
The Velez case relied on by the court addresses the presumption issue in more detail:
“The [car] presumption establishes a prima facie case against a defendant, who may, if he chooses, rebut it by interposing evidence to the contrary (People v Lemmons, 40 NY2d 505, 510; People v Jones, 57 AD2d 595). It is not conclusive even where no contrary proof is offered. In sum, its applicability is generally a question for the trier of fact (People v Lemmons, supra, pp 511-512), as is the applicability of the exception for a weapon found on the person (see People v Lemmons, supra, p 511; cf. People v Matonti, 53 AD2d 1022). Only where the proof is ‘clear-cut and leads to the sole conclusion that the weapon was found upon the person’, as for example, ‘where the weapon is secreted under one person’s shirt or under other items of clothing or in a pocket’ is the question of the applicability of the presumption removed from the trier of fact (People v Lemmons, supra, p 511). Upon this record, we find no such clear-cut exception where a police officer observes the hand of an unidentified occupant of an automobile drop a weapon to the ground. Under such circumstances, possession was not so personalized with respect to any one particular occupant as to render the presumption inapplicable as a matter of law. Further, we are not persuaded that the presumption is inapplicable to defendant Morgan because he was operating the vehicle at the time the weapon was dropped from its rear door (see People v Matonti, supra).”
Certainly, Velez gives prosecutors a broader stroke, but the cases certainly can be distinguished from one another. For example, a reading of the two cases reveals that Velez was an “unidentified occupant” while the defendant in Smith was the sole person in the vehicle at the time the firearm was thrown out. Regardless, the court likely disagreed with these factual discrepancy despite the advocacy of the defendant’s counsel. As a result, in this particular circumstance, the court found the “car presumption” to be an available tool for the District Attorney’s Office to prosecute all of the individuals in the vehicle.