The Curious Case of Raymond Felton & the Anti-Plaxico Burress Defense: Not All NY PL 265.03 Crimes are Created Equal

POST ARRAIGNMENT UPDATE: It appears that despite the arrest charge of PL 265.03, the Manhattan District Attorney’s Office recognized, at least for now, that they cannot prove this “C” felony beyond a reasonable doubt. Whether it was due to the credibility of Felton’s wife or not, I am not privy (maybe they read my blog!). However, now the top charge is Criminal Possession of a Weapon in the Third Degree, New York Penal Law 265.02. Although there is still significant exposure, Felton faces from two to seven years in prison (a presumptive two year minimum).

Raymond Felton, the New York Knicks point guard arrested for possessing a loaded firearm, is no Plaxico Burress. Sure, both athletes allegedly possessed a loaded gun in Manhattan without a license and face/faced the crime of Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), but not all crimes are created equal. While Burress served his time in prison on the strength of a CPW 2 case, Felton may be able guide himself clear of the top count.

Paxico Burress pleaded guilty after the Manhattan District Attorney’s Office leaned on the strict liability section of New York Penal Law 265.03(3). Simply, without a search and seizure type defense to challenge the recovery of the firearm, there was ample evidence (proof beyond a reasonable doubt), that Burress possessed an unregistered and loaded firearm in one of Gotham’s many clubs (obviously, not his home). Case closed? Not necessarily, but with limited defenses Burress was forced to mitigate his conduct as best he could to convince Manhattan District Attorney Cyrus Vance to deviate from the mandatory 3.5 year minimum term of incarceration.

While Felton also faces Criminal Possession of a Weapon in the Second Degree and its 3.5 year minimum, as of the pre arraignment (when one sees a judge for the first time) reports it appears that Felton will face a different crime of PL 265.03(1)(b). Unlike its strict liability brother, PL 265.03(1)(b) is a much more difficult offense for prosecutors to prove beyond a reasonable doubt.

In relevant part, PL 265.03(1)(b) makes it a crime to posses a loaded firearm (regardless of where) and that you have the intent to use that firearm (handgun, revolver, pistol) unlawfully against another person. Here, according to reports, Felton is accused of threatening his wife, Ariane Raymondo-Felton, in their home. At some point, after the alleged threat, Raymondo-Felton removed the firearm from the home and brought it to her divorce attorney who then brought the firearm to a neighboring precinct.

While Burress relied on mitigation and Felton may not have layups for a defense, the latter at least has open looks at the basket. Where shall we begin…

In no particular order:

(1) Did Raymondo-Felton make an immediate “cry” for help at the time or shortly after the alleged incident? Did she call 911? If not, why? Did she advise her doorman or a neighbor? Why did she go to her divorce lawyer (she is a law student and presumably knows her rights or the role of the police). When did she contact her divorce lawyer and why did she not take the firearm to the police (or merely call them and let them know where to get it?). Are there any prior Domestic Incident Reports or evidence of abuse that corroborate ongoing past conduct (it may not be admissible at trial, but is certainly relevant).

(2) Was Raymondo-Felton aware of the firearm in the apartment previously? If so, did she constructively possess it as well? After the alleged incident with her husband, how long did she possess it prior to bringing it to her attorney. Additionally, where did she posses it? Is she now claiming to be a victim in attempt to cleanse her hands of constructive and actual possession on her part?

(3) What corroboration exists that the firearm was loaded at the time of the alleged threat?

(4) As much as we don’t want to think that Raymondo-Felton has an alternative motive, it cannot be ignored. Is Raymondo-Felton using this incident as a “chip” in her divorce proceeding? Is this leverage to get Felton to pay more or be more agreeable to his wife’s demands? Is she using law enforcement as a “sword” instead of a “shield?” Clearly, there is a ripe avenue for attack.

To those not immersed in criminal law, the above questions may seem harsh and an attempt to victimize Raymondo-Felton further. Yet, any allegation is merely an allegation. It is neither fact nor truth until proven otherwise. Prosecutors, the courts and criminal lawyers cannot merely accept every allegation as gospel. If we did, the recently exonerated Brooklyn “murderers” would still be languishing in prison. Felton, just like you or I, deserves a cloak of innocence. Whether Felton is successful in beating the top charge of Second Degree Criminal Possession of a Weapon, the game is far from over. However, Felton may avoid the same fate as the former Giant’s star.

To learn about New York’s weapon and gun crimes, follow the links above or go directly to Crotty Saland PCs’ New York Weapon Crimes webpage.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors.

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