Criminal Possession of a Weapon in the Second Degree Defense

Criminal Possession of a Weapon in the Second Degree (NY 265.03) Defense

I have been a New York City Criminal Lawyer for more than 27 years, and in a busy big city criminal defense practice such as I have had, handling cases in Brooklyn, Queens, Manhattan, and the Bronx, I have had many times to face down charges of Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03).  Here is some information you ought to understand about the nature of these serious charges, how they can be defended properly, and some of the obstacles that you may face.  (Note that weapons possession cases also come in a couple other "flavors" in New York City (such as possession in the third degree), but for reasons related to the ease with which criminal possession of a weapon in the second degree can be charged these days, most weapons cases in New York City will be charged as criminal possession of a weapon in the second degree.  

Criminal Possession of Weapon cases are often broken down into three main categories, with one speciality category particular to Queens County Weapons Possession airport cases.  The three main categories are 1) Gun in a Car, 2) Gun in a House (or apartment), and 3) Gun on the Person.  These categories apply to any sort of weapons possession charge.

Category One - Gun in a Car in New York City

The first and probably most common category of criminal possession weapon charges in New York City is the "gun in a car case."  As the category name suggests, a "gun in a car" case occurs when the police recover one or more guns from a car.  This is probably the most common form of weapons possession charge in New York City, because these cases most frequently arise when people are stopped for quite common reasons (traffic infraction, for example) but for one reason or another circumstances develop that lead to the police locating a weapon somewhere in the car.

What typically happens in a "gun in a car" case is that once one or more weapon is recovered, the police will arrest everyone in the  car, not just the driver, and charge everyone with possession of the same weapon(s).  This raises some very good questions in the minds of people who are arrested in this circumstance who do not feel responsible for the weapon.  For example, if a gun is recovered from the trunk of the car, a passenger arrested for the weapon will be understandably upset and wonder how he or she is arrested when it isn't his or her car and the gun was recovered from the trunk.

This horrifying situation is the moment when many people have to learn about "the automobile presumption" in the law.  Essentially, under our law, if you are in a car, and there is an illegal weapon in a car, the law "presumes" you to be in possession of that weapon.  This presumption applies to as many people as are in the car at the same time.  This presumption is enough to get you arrested and prosecuted, and enough by itself to give your case to a jury.  For what it is worth, the presumption is NOT mandatory, so the jury is not REQUIRED to apply it to you, but they are allowed to if they feel like it.  The automobile presumption is a very very powerful tool of the Government.  Of course you are allowed to run a defense on the theory that you were not aware of the gun, but at the end of the case, the Judge will advise the jury that if you were in the car and the gun was in the car, they are allowed, although not required, to find you guilty.

Before you imagine that it is impossible to win such a case, I can tell you from experience that it is most definitely possible.  Recently, I won a criminal possession of a weapon in the second degree trial against exactly this presumption.  My client was a front seat passenger in the car that had been stopped for a traffic infraction, and the gun was located by the police underneath the driver's jacket in the back seat behind the driver.  It was a major part of my defense of the case, obviously, that the gun was under the driver's jacket, and that there was no evidence in the case that my client was ever observed with the gun, talking about the gun, or having anything to do with the gun.  Ultimately, the jury agreed and declined to apply the automobile presumption to my client.  Therefore, it is possible to defeat the automobile presumption at trial, as powerful as that presumption is, under the right circumstances.

Category Two - Gun in a House (or Apt) in New York City

Similar to the "gun in a car" case, and just as obviously named, is the case of a weapon recovered inside a person's home or apartment.  Also similarly to the "gun in a car" situation, when a weapon is recovered inside a person's home or apartment, the police will frequently arrest everyone they find.  A similar presumption of possession applies in your home or apartment as applies in your car.  Therefore, I have been involved in cases where entire families are arrested when illegal things are recovered inside a home.  In one particular case (involving drugs not a gun, but the issue is the same), I represented an elderly 80 year old woman, grandmother of the person who the police really suspected of being responsible for the drugs, who was arrested along with everyone else.  To the credit of the prosecutor's office, they agreed to dismiss the charges against the grandmother.

Because we have enhanced privacy expectations in our homes and apartments, encounters with the police in homes and apartments are relatively rare, except when there is a search warrant involved.  Most of the time, when the police are searching inside a person's home or apartment, it will be on the authority of a search warrant.  

Category Three - Gun on the Person in New York City

Finally, the third main category of weapons possession case in New York City is "gun on the person" case.  This is where the police locate a gun quite literally on somebody's person, whether in a pocket, in a waistband or holster, or in a bag the person is holding.  The issue of presumptions of possession are mostly irrelevant here because the weapon is found directly in possession of the person.

Defending Criminal Possession of a Weapon in the Second Degree Charges

Defenses to possession of a weapon or possession of anything for that matter, really amount to two types.  The first line of defense is a legal one related to search and seizure issues arising from how the weapon was found by the police.  

Under our law, the police are required to operate according to the law, which includes not violating our Constitutional rights.  Therefore, before a trial can happen on a weapons possession case, there must be a hearing in Court, where the Government must be able to justify how the police came to be in possession of the weapon.  If the Government can justify what the police did, then all is well for the Government and the case may proceed.  If the Government is unable to justify what the police did, then the weapon recovered is not allowed to be used as evidence at trial.  This is the operation of what is known as the "exclusionary rule".  This area of the law, search and seizure, is extraordinarily complex and fact dependent.  It is also highly dependent on the credibility of the police officers and other witnesses who testify at these proceedings.  If a police officer appears otherwise credible, for example, and if that officer testifies that he pulled over the car because the car crossed the double yellow line in traffic, it may be a challenge to call that testimony into question, even if you are absolutely confident it didn't happen.  (Cross examination is typically going to end up being "liar liar pants on fire" cross examination that is mostly ineffective except in movies.)

As an aside, you should know, despite the way things are portrayed on television and in the movies, that winning suppression of something like a weapon in a real live actual case is one of the rarest of achievements for any criminal defense lawyer.  I recently won suppression of a weapon in a "gun in a car" case in Queens, sparing my client nearly a decade in jail, and I felt like Luke Skywalker blowing up the Death Star.

Also, if the case involves a search warrant, you should know that the legal issue of probable cause and the legality of the search and seizure as a whole is nearly completely eliminated.  There are ways to mount attacks on search warrants, but as a practical matter they are even less likely to be successful than regular search and seizure attacks.  In 27 years of exclusive criminal defense practice, I have seen but a handful of plausible attacks on search warrants.  

The second line of defense to a criminal possession of a weapon second degree charge is of course that you were not in possession of the weapon.  Maybe you were a passenger in the car or a guest in the house or apartment where the gun was recovered.  In this sort of a defense, you will typically be battling against one of the Government's presumptions of possession.  If you can establish credible evidence of your lack of connection to the car or apartment as well as a minimal amount of time in the car or the apartment, your case will be better.  But as always, the presumption will loom out there as a possible path to conviction, regardless.

For "gun on the person" cases, once the Government gets by the search and seizure hearing, the situations where there is a clear path to victory are rather thin.  Absent extraordinary circumstances, you will be left with the possibility that the testimony that is offered putting the gun on your person is not credible or not sufficiently credible (the witness who says the gun was on your person is lying) or a thin and often unlikely defense that you had simply found the gun just moments before and were on your way to transport it to the police to get rid of it and make it safe.  Often the circumstances and timing of the recovery of the weapon make even the suggestion of such a defense absurd.

Seriousness of Criminal Possession of a Weapon in the Second Degree

Second degree weapons possession is a class C violent felony in New York and it carries a mandatory minimum of 3 1/2 years even for a first arrest with a potential of up to 15 years.  (Don't spend too much time worrying about the maximum in a first arrest situation.  That is highly unlikely.)  The minimum of 3 1/2 is the "book value" of the offense, but the actual market value of most first arrest weapons possession second degree cases will be a 2 year flat offer (or thereabouts).  This can obviously change depending on the circumstances (such as gun in the airport cases in Queens), and gun cases offer a wide array of varying circumstances, but a first arrest 2nd Degree Weapons Possession charge in actual practice will draw an offer of 2 years flat sentence on a violent felony.  Out of that 2 years, a person would get about 1/7th off as long as there were no problems.  There would also be a period of post release supervision (similar to what was once called parole).

You need a criminal possession of a weapon in the second degree lawyer

Facing down a second degree weapons charge in New York City is clearly a serious situation.  You need legal help.  Ideally, you will want a New York City criminal lawyer with experience handling cases like yours.