With a timeout on the court and Raymond Felton out of jail heading back to the hardwood, it is a good time to reassess the events of the first quarter and what we can expect over the next three. Clearly, there is no better time then now to examine where Felton’s firearm and weapon charges may head over the next few months. As a preliminary matter, and of great significance, Felton avoided the charge of Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03. Despite being arrested for this offense, Manhattan prosecutors recognized for now (charges can always be added later) that the “C” felony would be a difficult lift. That is, Assistant District Attorneys likely realized that it would be no easy task proving beyond a reasonable doubt that Felton intended to use the weapon unlawfully against Ariane Raymondo-Felton (see my earlier entry and accompanying analysis).
So what are the official arraignment crimes and what should we expect going forward?
The Crimes and NY Penal Law Offenses
The top count that Felton now faces is Third Degree Criminal Possession of a Weapon. This crime, New York Penal Law 265.02, is a “D” felony. There is a presumptive mandatory minimum sentence of two years and a maximum of seven years if Felton is convicted. For perspective, Plaxico Burress faced a charge of New York Penal Law 265.03, Second Degree Criminal Possession of a Weapon. That crime carries a minimum mandatory sentence of three and one half years and a maximum of fifteen years in prison.
The specific subsection that Felton now faces is New York Penal Law 265.02(8) according to online records of his arraignment. This section states in relevant part that is a crime to possess a large capacity ammunition feeding device. Defined by statute, a device such as this includes a “magazine, belt, drum, feed strip, or similar device, that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.” According to the allegations, the firearm Felton is alleged to have possessed in his home contained 18 rounds in a magazine capable of holding 20. As you can probably glean from the language, it is a strict liability type of offense. There is no intent to use the firearm unlawfully required.
The second crime that it appears Felton is facing according to reports (but potentially incorrectly recorded online), is Criminal Possession of a Firearm pursuant to New York Penal Law 265.01-b(1). This crime, an “E” felony, is punishable by up to four years in prison. In substance, post New York SAFE Act, it is a crime to possess a firearm without the proper licensing or permission to do so. Again, there need not be an intent to use this weapon unlawfully.
What’s Next: Process & Procedure
After a felony arrest in New York State, the People, aka, the prosecution, have six months to be ready for trial. Unlike the real world of math, six months in the law can be significantly longer depending on many factors. Regardless, during this time, the People can present a case to a Grand Jury for that body to determine if there is reasonable cause to believe a felony has been committed. This standard is much lower than trial proof which is beyond a reasonable doubt.
The Grand Jury is made up of residents of the county where the offense was allegedly committed. There is no judge in the Grand Jury. A defendant has the right to testify in New York State. However, should Felton decide to testify in his defense in the event the case is presented, he must waive his immunity. Further, his attorney can only be present, but cannot advocate in the Grand Jury room with objections or other statements.
Can the Grand Jury Hear Testimony of Felton’s Alleged Threats
Assuming the prosecution only pursues Third Degree Criminal Possession of a Weapon and Criminal Possession of a Firearm, the People should not be able to introduce the allegation of threats and violence. They are not relevant to or an element of these crimes. If the unlawful intent element of Second Degree Criminal Possession of a Weapon were charged, then the People would certainly introduce Raymondo-Felton’s testimony. Remember, even though Second Degree Criminal Possession of a Weapon is not on the felony complaint, prosecutors can still charge the more serious offense in the Grand Jury should the case go there.
Can Felton Move to Surpress the Recovery of the Firearm
Generally speaking, one can always challenge a police search. However, when a private party not working as an agent of the police retrieve property, the same right does not exist. Felton’s wife is clearly not the police and was not acting at their behest. However, there may be other means to address this.
What is the Possible Outcome
If I had a crystal ball, I would use it to my advantage in each and every case. For better or worse, I do not. While Felton avoided the most serious offense of NY PL 265.03 and its three and one half year minimum sentence, that crime was actually an “easier” one to defeat. The lesser offense of New York Penal Law 265.02 may only carry a minimum of two years in prison, but it is more of a strict liability crime.
Despite the strict liability nature of these remaining crimes, Felton is no where near raising a white flag. As previously discussed in my earlier entry, can Felton argue, among other things, that the firearm was his ex-wife’s or that she possessed it either constructively or actually? If nothing else, the manner in which the weapon was removed from the home and surrendered was “odd.”
It is easy to play the equivalent of Monday Morning Quarterback after the fact. However, from reports it appears that Felton may have attempted surrender the firearm earlier through his divorce attorney. It is likely that should the case move towards mitigation in lieu of legal challenges, Felton may address this to his benefit. More than just a bad pass, if this is true, it would have behooved Felton’s matrimonial counsel to reach out to the local precinct to surrender the firearm. While each case is unique, just last week I arranged for a surrender where our client received $100 after turning over a firearm. This strategy could have potentially avoided the predicament Felton now faces, but can potentially still be used as mitigation. Alternatively, because there was an attorney-client communication that was privileged, as long as that privilege is not lost, Felton can keep this out of court as to not adversely impact the possible defense that the firearm belonged to his ex-wife.
At bottom, Felton is either going to attempt to fight the case from a legal standpoint or look for a plea deal for something less than what Burress received (assuming the crimes remain as they stand and the “C” felony is not added through an indictment). Time will certainly tell.
To read more about New York Firearm and Weapon crimes, follow the links throughout this entry, New-York-Lawyers.org and the NewYorkCriminalLawyerBlog.Com.
Saland Law PC is a New York criminal defense firm. The founding New York criminal lawyer at Saland Law PC served as Manhattan Assistant District Attorney’s prior to establishing the law practice.