There are few crimes that prosecutors in New York take as seriously as those involving the illegal possession of firearms, revolvers, pistols, glocks and other weapons. In fact, not only is it an “automatic” felony in New York to possess a loaded firearm outside your home or place of business without a permit to do so, but even if you are lawful gun owner and permit holder in another state, you must have permission from New York to possess that firearm here. Should you fail to secure a New York permit (there are different types of permits that allow certain types of possession), you can and likely will be arrested for Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). This crime, a “C” violent felony, is punishable by a mandatory minimum term of 3.5 years in a New York State prison and a maximum term of 15 years. This law holds true whether or not you are trying to check your firearm properly at JFK or LaGuardia Airports on a flight out of New York City (see recent cases prosecuted by the Queens County District Attorney’s Office) or you are merely trying to do the “right thing” by “turning in” your gun at Ground Zero in lower Manhattan upon realizing that your possession is not legal or proper (see recent cases prosecuted by the Manhattan District Attorney’s Office). While the important and commendable intent and purpose of the criminal statutes found in Article 265 are there to curb illegal gun sales, gun trafficking and gun violence, it unfortunately also gives District Attorney’s Offices the ability to hammer (or threaten to do the same) otherwise law abiding citizens who are not familiar with New York’s strict gun laws.
Colloquy aside, whether you are a resident of New Hampshire riding in a vehicle with another person who legally owns a firearm in that state or you are a passenger in a vehicle with someone who has a defaced firearm that he or she plans on using in a “stick up,” can you be charged for possessing that firearm even though it was not on your person or in your actual physical possession? The general answer to this question is found in a New York Penal Law 265.15(3). The presence in an automobile (with some exceptions) of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found (again with some exceptions such as the firearm being found on the person of another passenger or driver). Taking this question or issue a step further, what if the firearm found in that vehicle is inoperable? Does the presumption still apply to guns that do not work? The answer appears to be that it does not.
As a preliminary matter, New York law requires that in order to be convicted of illegally possessing a loaded firearm in the Second Degree, prosecutors must satisfy each element of New York Penal Law 265.03. One of the requirements is that the gun is operable or it works. If it is not, New York’s highest court, the Court of Appeals, has found that one can still be convicted of attempting to possess that firearm (an attempt to complete a crime lowers the offense or punishment one level and is therefore less sever). Having established that, People v. Richard Martinez, 3170/2011, NYLJ 1202567588297, at *1 (Sup., BX, Decided August 1, 2012), addressed the question presented here. That is, does the presumption apply for non working firearms? More specifically, as stated by the Martinez court, does “possession of an inoperable gun, predicated on a theory of the permissive presumption of Penal Law 265.15, qualif[y] for prosecution as attempted criminal possession of a weapon[?]”
In finding that the automobile presumption did not apply due to the inoperability of the firearm, the Court stated as follows:
“The automobile presumption — Penal Law 265.15 and its predecessor statute — was designed to resolve the dilemma created when police discover a gun in an automobile with multiple occupants, none of whom have actual possession of the weapon. The statute created a presumption of knowing possession in order to satisfy the requirement for the culpable mental state. People v. Thompson, 202 AD2d 337 (1st Dept.); lv den., 83 NY2d 915 (1994). The presumption serves an important legislative purpose: to make it easier to prosecute people for the possession of operable, dangerous handguns.” “[A]n inoperable gun is not ‘within the category of weapons to which the statutory presumption applies.’ People v. Brown, 37 AD2d 623 (2d Dep’t 1971)…Moreover, permitting the People to rely on the presumption when a weapon is inoperable is inconsistent with the ‘aims and purposes of the penal law’ that underlie the concept of assigning criminal liability for attempts to commit crimes.” People v. Dlugash, 41 NY2d 725, 726 (1977).
In short, it is “impossible to attempt to commit the crime of criminal possession of a weapon in the third degree based, as [in Martinez], on a mental state which is presumed by operation of law.” Instead, the People need to provide direct and actual evidence of this mental state.
The value of this case as part of any defense to an arrest for Criminal Possession of a Weapon based on a legal presumption is clear. Where the firearm in question is inoperable, this case may have a significant impact on your defense. Remember, this blog entry is not an in depth analysis of Martinez, but merely touches on its scope and meaning. You and your New York gun possession lawyer should review this case in greater depth if warranted.
To learn more about the varying degrees and types of firearm and New York Criminal Possession of a Weapon crimes, please follow the highlighted links found throughout this entry as well as through the CrottySaland.Com website and NewYorkCriminalLawyerBlog links above and below.
Founded by two Manhattan prosecutors who served in the New York County District Attorney’s Office, Crotty Saland PC is a criminal defense firm representing those accused of knife, firearm and other weapon crimes throughout New York City and the suburban New York City area. Although past results in no way can guarantee future outcomes, the criminal lawyers at Crotty Saland PC has successfully defended numerous clients in the avoidance of criminal records in the face of felony and misdemeanor weapon possession arrests.