Articles Posted in Weapon Possession

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Saland Law PCs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law い 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”

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Now that the Manhattan Grand Jury has voted an indictment in the gun possession case against Plaxico Burress, Burress and his attorney only have a few ways for him to avoid any jail at all. While this is a highly unlikely scenario (like any New Orleans Saints team winning the Super Bowl), outside of “jury nullification,” some legal analysts and attorneys believe that another means for Burress to attack the Criminal Possession of a Weapon charge can be found in the United States Supreme Court’s decision in District of Columbia v. Heller. In that decision, the United States Supreme Court found that individuals had a constitutionally protected right based in the Second Amendment to possesses firearms even if a local DC ordinance implementing a ban on guns said otherwise. Sounds great for Burress, right? Well…not so fast.

The United States Supreme Court decision in Heller slapped down a particular ordinance in the District of Columbia that amounted to a ban on arms. As noted in a decision published today in People v. Kenneth Kirby, a Suffolk County District Court judge found that:

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With the recent media attention over the gun possession charge against Plaxico Burress (he is back in Manhattan criminal court this coming week, but the matter will be adjourned until September because there is no deal in place), New York criminal defense attorneys, such as the former Manhattan prosecutors and criminal defense lawyers at Saland Law PC, are keeping an eye on how the charge of Criminal Possession of a Weapon resolves itself in this case. In fact, Jeremy Saland, one of the founding partners who served for seven years under Robert Morgenthau, has been immersed in the case since its inception as a legal analyst on gun crimes as it relates to Mr. Burress for CNNSI.Com, the New Jesey Star-Ledger, and the AM NY. While Saland Law PC has been extremely successful in representing individuals charged with carrying a loaded firearm, the best defense is knowing the law in New York State so that you do not put yourself in a situation where you may violate the law. Therefore, the subject of this entry is going to deal with certain legal presumptions that apply to gun possession that are found in the New York Penal Code.

Pursuant to Penal Law 265.15 there are certain legal presumptions that apply to guns in connection with one’s intent to use that firearm unlawfully as well as defacement of the firearm. While this entry will not deal with every presumption, I will address some of the more common ones as follows:

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You have just been arrested for Criminal Possession of a Weapon for possessing a loaded firearm, gun, rifle or revolver. You tell your NY criminal defense attorney that the handgun was not loaded. After all, you had the ammunition locked away in the same carrying case as the gun while checking it at JFK or Laguardia Airports, but the bullets were not physically in it. In a different scenario, you explain to your criminal defense lawyer that your handgun was in a holster and empty while the bullets where in a pouch in your other pocket. How is it, you ask, that you are being charged with Criminal Possession of a Weapon in New York if the ammunition was not actually inside the gun?

The answer to this question is a fairly simple one. Pursuant to Penal Law Section 265.00(15), “Loaded Firearm” is defined under the NY Penal Law as “any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge the firearm.” See People v. Walston 147 Misc.2d 679 (Kings County 1990) (Possession of shotgun shell where the shotgun was present was sufficient to find the shotgun loaded.)

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The felony charge of Criminal Possession of a Weapon as it relates to pistols, guns, revolvers and firearms, has been receiving the undivided attention of the media, criminal defense attorneys and even politicians since Plaxico Burress’ arrest. In fact, at the time of Burress’ arrest for gun possession in New York, many of these media outlets reached out to Saland Law PC to discuss the nature of the gun charge as well as the ramifications of the offense. CNNSI.Com as well as the AM New York utilized Jeremy Saland’s experience as a former Manhattan Prosecutor and as a NY criminal defense attorney to analyze the incident and explain the applicable law.

Once again, Mr. Saland’s knowledge and experience prosecuting and defending gun crimes was sought out by the media. The New Jersey Star-Ledger interviewed Mr. Saland and requested his legal analysis in the paper’s coverage of Mr. Burress’ court date earlier today.

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