Tennessee Woman Arrested for Possessing & “Checking” Loaded Firearm at Ground Zero: Analysis of NY PL 265.03 & Its Strict Enforcement

To do the “right thing” almost always takes courage. The path of least resistance it is not. In New York City, where gun crime seems to have been relatively rampant over the past year recently culminating in the tragic death of New York City Police Officer Peter Figoski, District Attorneys are frothing at the mouth with every new firearm arrest. While often time zealous prosecution is more than reasonable in gun and violent crime cases, other times law enforcement in New York City can’t see the forest from the trees. For the sake of Meredith Graves, a nurse from Tennessee who “checked” her legally owned handgun with the police at Ground Zero, let’s hope that Manhattan District Attorney Cyrus Vance, Jr. not only can see this recent gun possession arrest for what it truly is – an honest mistake about New York laws – but also ignores the general guidelines he and his office have imposed on weapon cases.

Before addressing the allegations against Ms. Graves, one must understand and have a grasp on New York’s criminal statutes involving the possession of firearms without a permit. According to New York Penal Law 265.03(3), you are guilty of Criminal Possession of a Weapon in the Second Degree (CPW 2) if and when you possess a loaded firearm (a pistol, revolver, handgun, etc.) that is both loaded and outside your home or place of business and you do so without a permit. There are two critical concepts or rules that apply to these cases. First, you need not possess any intent to use that firearm unlawfully or against another person. Second, case law establishes that “loaded,” in the eyes of the court, is far more liberal than its literal meaning. In fact, if the firearm is capable of being loaded and the ammunition is locked in a carrying case with your gun (but not physically in it), then that gun is considered loaded for prosecution purposes. One last, but unavoidable point. As a “C” violent felony, NY PL 265.03 is punishable by a mandatory minimum of three and one half years in prison for a person without absolutely no criminal history. Compounding matters, a judge could sentence a defendant to as many as fifteen years in custody.

According to the New York Post, it appears as if Ms. Graves inadvertently violated Criminal Possession of a Weapon in the Second Degree when she drove from Tennessee with a loaded pistol and entered New York. Although she possessed the proper permit for her .32 pistol from her home state, New York requires anyone within her borders to possess a valid New York permit. Once here, and recognizing that firearms were not allowed at Ground Zero where she was visiting the 911 Memorial, Ms. Graves wrongly believed she could check the weapon without any reprucssions. Not realizing what was in store, Ms. Graves attempted to turn the gun over to security who then brought her to the police. In their presence, Ms. Graves handed the gun into the police. If all of the allegations are true, Ms. Graves perpetrated one of the most serious felonies in the New York Penal Law.

The denizens of Manhattan elected Mr. Vance to serve as District Attorney after decades of honorable and “no nonsense” service by his predecessor, Robert Morgenthau. Whether the tabloids agreed or the political winds blew in a particular direction made no difference to “the Boss.” Subjectively, and we certainly can agree to disagree, Robert Morgenthau attempted to always do the “right thing.” District Attorneys do not prosecute alleged offenders merely because they can, but because they should. If all of the facts as alleged by the New York Post are true – Ms. Graves was licensed in Tennesse to carry the firearm, she did not initially realize she possessed the weapon at Ground Zero, Ms. Graves attempted to turn in the weapon – and Ms. Graves is a registered nurse with no criminal history who was applying for a position at Brookhaven Memorial Hospital, this case is not one to hang a prosecutorial hat. No greater good would be served to slap down the accused with a criminal conviction whether it be for a misdemeanor or felony. Justice would not demand that a lapse of judgment should prevent a registered nurse from maintaining her license to practice or from coming to New York where her skills would be a much needed asset (frankly, property taxes might scare her and other skilled professionals away anyway). While the decisions to do the “right thing” may not be a popular one in this understandingly hostile firearm climate, Ms. Grave’s weapon was not stolen or part of the illegal firearm trade.

Despite what law enforcement might think about sending a message to would be illegal firearm possessors in New York, a flexing of “District Attorney muscle” would arguably send the wrong message in this limited type of case. That is, if you possess a weapon in New York not realizing the law and that firearm is properly registered with a permit elsewhere, hide it and conceal it. Under no circumstance should you bring it to law enforcement. While not doing so could endanger the lives of police officers and regular residents, prosecutors will punish you for doing the “right thing” while they are unwilling to do the same.

If any of the above information or assumptions is incorrect, then a different analysis may very well be necessary when deciding how to prosecute this case. It could be, in fact, that a thorough and full prosecution is necessary. Otherwise, our leaders in law enforcement and elsewhere are elected and appointed to have courage and do the “right thing.” Whether the appropriate outcome in this case occurs, and I am not insinuating that it will not, time will certainly tell.

To educate yourself extensively on New York’s weapon possession laws including Criminal Possession of a Weapon in in the Second Degree, follow the highlighted links above. There you will find analysis of the various Article 265 statutes as well as links to the NewYorkCriminalLawyerBlog.Com where there is further review of legal decisions and cases in the local New York City area news.

Established by two New York criminal lawyers, the former Manhattan prosecutors at Crotty Saland PC represent individuals accused of weapon crimes throughout the New York City region.

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