Is Proof of an Out of State Firearm Permit or License a Defense to the Charge of NY PL 265.03 – Criminal Possession of a Weapon in the Second Degree?

As a preliminary matter before addressing the issue and court decision in this blog entry, I want to briefly state the law of possessing unlicensed firearms, guns, revolvers, pistols, etc. in the State of New York. Pursuant to New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, it is a felony offense to possess a loaded firearm in New York outside your home or place of business without a license to do so. If convicted, someone with no prior criminal history would face a minimum of 3.5 years to 15 years in state prison.

Having briefly addressed the law in New York, I want to discuss a recent criminal decision that stemmed from Queens County in New York City. In the People v. Dwayne McLaren, 2159/2010, NYLJ 1202552954788, at *1 (Sup., QU, Decided April 27, 2012), the defendant argued the court erred by denying him his Due Process right to a fair trial by precluding him from introducing into evidence the fact that he possessed a valid license to carry a concealed and loaded weapon in neighboring Connecticut.

Before jury selection, the prosecution made an application to prevent the defendant from introducing any evidence at trial his Connecticut license for the weapon he possessed when arrested in New York. The Court found that since the prosecution alleged that the defendant intended to use the firearm against another person and the People relied on the statutory presumption found in Penal Law 265.15(4), the jury should be permitted learn of the defendant’s Connecticut license for the same weapon. This evidence could be material to the defendant’s mental state of intent. However, having said that, beyond the subsection of New York Penal Law 265.03 that deals with an intent to use unlawfully, maintaining a Connecticut license or permit is not relevant. The subsection that merely deals with possession of a firearm simply requires that the defendant knowingly possessed that weapon in New York.

The court further explained:

“While the defendant is correct that his mental state at the time of his arrest was a critical element of the crime charged, he is mistaken in contending that the fact that he was a holder of a Connecticut pistol license had any bearing on whether or not his possession of the weapon in New York State, on December 12, 2009, was a ‘knowing’ possession or not. A person knowingly possesses a firearm when he is aware that he possesses a firearm. Therefore, the fact that a person may possess a license to possess a firearm is immaterial to whether or not that person is aware that he is in possession, actual or constructive, at the time and place in question. To have allowed evidence of the pistol license before the jury would have been improper, since the only purpose in doing so would have been to engender sympathy for the defendant.”

Although this court decision may be beneficial in the context of malicious or violent gun crimes and offenses, it has little to no value where the allegation is of the “strict liability” variety (mere possession). For example, if you have a license to possess and carry a gun, revolver or pistol in Florida, California or Texas and you attempt to properly secure that firearm when checking into your flight at either JFK or LaGuardia airports, you will likely not be accused of a unlawful intent subsection and this case will have no value. At the same time, because you would likely be charged with the straight possession crime, this decision would not benefit you either.

While it may seem that the cards are stacked against you in a case involving the possession of a loaded and unlicensed firearm outside your home or place of business…your assessment would be right. However, make no mistake. There are ample legal decisions that may be used to your benefit and preliminary issues that cannot be ignored. How did it come to be that the firearm was recovered? Was there an improper search? Assuming the search was valid, is the firearm operable? Further, is the alleged possession constructive or actual? Was the revolver in a vehicle? Was the pistol open for others to see? Was the gun in a home? Beyond the legal issues, are there factual or evidentiary problems that the prosecution may face and that your criminal attorney can exploit? If not, can your criminal lawyer mitigate your conduct to lessen the allegation of Criminal Possession of a Weapon in the Second Degree? These are just some of the many questions and issues you will encounter and address should you find yourself arrested or indicted for New York Penal Law 265.03.

To learn more about New York gun crimes and weapon offenses such as Criminal Possession of a Weapon, follow the highlighted links above or go directly to Saland Law PC’s Weapon Crime Information page at the Saland Law PC website linked below. There you will not only find analysis of statutes, but legal assessment of cases and decisions that have a direct impact on the application and interpretation of those laws.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Saland Law PC have successfully represented numerous individuals charged with and accused of possessing firearms and other weapons in New York City, New York airports and the surrounding municipalities.

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