Criminal Possession of a Weapon in New York at JFK or Laguardia Airport

What it all means when you or someone you know has been arrested for criminal possession of a gun at JFK or Laguardia airport

By Don Murray, Esq., Queens Criminal Defense Lawyer

A particularly persistent problem in New York City (Queens, specifically) is the fairly regular case of someone being arrested at either JFK or Laguardia airport for criminal possession of a weapon (typically the C violent felony version).  Now your first, and natural reaction to this might be "good" because who needs guns at the airport, especially in the hands of people who shouldn't be possessing them?  But these "gun at the airport" cases are not exactly what you might think.

Here is what happens: Passenger lives in a state where gun control laws are not as strict as New York, like say, Texas. Passenger wants to travel by airplane with his gun as he has done quite a few times before to other southern or western states. He does everything by the book, including alerting the airline in advance and checking for the appropriate procedures.  Believe it or not there is a regular procedure for transporting weapons that occurs every day all over the country...just not much in New York.

This time, however, our Passenger IS traveling to New York City. So this time he actually contacts the airline and asks for instructions. They give him instructions. He follows the instructions. He has all the paperwork, all the licenses, all the everything he needs to be in legal possession of that gun in Texas and probably 23 other states, except unfortunately, New York. The airline information people provide him with the Federal rules about which they are primarily concerned but do not provide him the information about New York State specific rules.  They don't advise Passenger that the second he takes possession of the gun in New York City, he is likely guilty of a C violent felony, punishable by a mandatory minimum prison sentence of 3 1/2 years.  (And despite how silly it may seem, he has no realistic legal defense.)

Blissfully ignorant of the world of hurt coming his way, Passenger flies to NYC, lands and retrieves his gun, just like the rules say it should work.  Passenger goes upon his merry way into NYC with his gun just as if he were at home in Dallas.  Every single second, he is guilty of a C violent felony in NY.  But since he isn't a criminal committing crimes, usually the gun is never discovered by the police until it is time to return to Texas.  On the day of departure, Passenger packs up his gun in preparation for the journey back home.  Upon arrival at the airport, Passenger does what Passenger always does.  He approaches the airline counter and advises that he has a gun to declare.  

And so the nightmare begins. 

The airline employees are trained for this sort of thing (although they are not trained apparently to warn people about it up front).  As soon as someone wants to declare a gun, they call the police (knowing that in NYC it is nearly impossible for anyone other than law enforcement to have a handgun).  The police arrive, ask the Passenger whether this is his gun, and when he says it is, they arrest him for a C violent felony that carries a mandatory minimum of 3 1/2 years.  

And don't imagine that the nightmare ends there.  The arrest triggers a 19-24 hour arrest process that concludes with the District Attorney's Office frequently requesting thousands of dollars in bail. 

See, for example, the videotape below, of one of my clients in this situation being questioned by an Assistant District Attorney before her arraignment after being arrested at the airport.   As part of this conversation, the ADA assures my client that she will be released no problem and that she has nothing to worry about.  A few hours later, the prosecutor at the arraignment requested $10,000 bail.  Nice. 

Bail is requested because of the seriousness of the charges, and the fact that by definition, people caught up in these cases are from out of town.  Now just because bail is requested doesn't always mean that a judge will impose bail.  Most judges, especially judges who have experience as prosecutors or defense lawyers, understand this type of case as one that is typically capable of reasonable settlement at some point.  Therefore, most judges will consider releasing people without bail simply on their promise to return.  In fact, the Judge in the case from the video above agreed with me that my client should be released without bail, despite the fact that the Prosecutor's Office requested $10,000 bail.  My client made all court appearances and the case was concluded without a criminal conviction.

Alas, most does not mean all.  We defense lawyers who handle these cases occasionally run across Judges, even Judges who were former colleagues who know full well how it is likely to go, who are willing to set bail regardless.  I had an executive at a well known company from Texas caught in this mess recently.  He had no criminal history except a DWI from when he was young a long time ago in California.  Coming back and forth to court from Texas was not going to be a problem for him, obviously, and in fact it was in his interest to get the matter settled appropriately.  He would not be permitted to continue in his position if he suddenly decided to elude justice and go on the lam.   Nothing about the case would have suggested that I wasn't going to be able to ultimately settle the matter without a criminal conviction.  

And yet, this Judge, former defense lawyer who no doubt handled some of these cases herself and knew full well the state of affairs, saw fit to set $5000 bail.  Now this was not an amount that kept my client incarcerated.  He made the bail.  But really?  Was it necessary?  Was this executive who stood to lose so much really likely to flee for his secret lair under the Pacific Ocean forever if not for the $5000 bail set by this Judge for reasons known only to her?

And this is the sort of nightmarish eventuality that a person accused of criminal possession of a weapon at the airport faces.

This scenario, or a version of it, plays itself out regularly in New York City. At Shalley & Murray alone, we have handled quite a few of these sorts of cases (several a year on average) and we are but one small New York City criminal law firm. 

One of the difficulties in cases within this general scenario is that the District Attorney's Office has (legally) a very strong case. There is virtually no legal defense to these cases despite how ridiculous it might seem that someone with a license in 23 states who follows all the directions that the FAA and the airlines told him could be guilty of a violent felony offense.

Therefore, the District Attorney's Office has a great deal of bargaining power when determining how or whether to negotiate. If they choose, they can adopt a hostile "take it or be indicted for a violent felony for which there is a mandatory state prison sentence) approach. This is not to say that they will adopt such a hostile approach. But in negotiating these cases, one must keep in mind that the District Attorney's Office has this over the head of the accused.

The one bit of room the accused in this scenario has is that he may be able to take advantage of the Grand Jury process in a way that most defendants can not. Defendants facing felony gun possession charges in this circumstance can be good candidates for testifying in the Grand Jury if the case gets that far. The Grand Jury is of course normally not a terribly defendant friendly procedure for a variety of reasons that should be reviewed with a lawyer. Furthermore, as I mentioned before, the accused in this scenario really hasn't much of a LEGAL defense. So why on earth would Passenger want to testify before the Grand Jury and virtually confess to the crime?

…because members of the Grand Jury are human beings who may have little use for indicting Passenger for a felony under these sorts of circumstances. It has happened that Grand Jurors in cases such as this  refuse to indict.

Keep in mind that a decision to testify in the Grand Jury in this sort of situation is a HUGE decision and one that ABSOLUTELY MUST BE MADE ON A CASE BY CASE BASIS WITH AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY. The accused must understand the risks involved and must understand that his testimony before the Grand Jury under oath is arguably admitting to all of the necessary elements of the crime.  Possession is a fairly simple and straightforward concept in this context.  When the accused describes the process of carrying the gun into the airport, alerting the airline employees to the existence of the gun, and saying, "I would like to check my gun in for travel on the plane." it makes it difficult to argue that the accused was not in possession of the gun.

Queens County District Attorney's Office also maintains a fairly consistently enforced policy of no negotiation after cases are indicted, which has the effect of forcing a person who has been indicted to choose between the mandatory minimum on the case (3 1/2 years in prison in the case of most gun at the airport cases) or to see what happens at a trial where there is not much in the way of a legal defense.  A loss at trial exposes the person to a sentence well beyond the mandatory minimum, which in the case of most gun at the airport cases, could be up to 15 years in prison.

NOT EVERY GUN CASE, EVEN IF IT IS AN AIRPORT GUN CASE, IS A GOOD CANDIDATE FOR GRAND JURY PRESENTATION. UNDER NO CIRCUMSTANCES SHOULD ANYTHING IN THIS ARTICLE BE TAKEN TO MEAN THAT SHALLEY & MURRAY RECOMMENDS THAT ALL DEFENDANTS IN AIRPORT GUN CASES TESTIFY IN THE GRAND JURY. IN DISCUSSING THE POSSIBILITY OF A GRAND JURY PRESENTATION UNDER THESE CIRCUMSTANCES, I MEAN ONLY TO DESCRIBE ONE POSSIBLE PATH FORWARD THAT ITSELF CARRIES SIGNIFICANT RISK.

The District Attorney's Office is aware of the risk of losing the case entirely, but is certainly more than willing to take it if the assistant handling the case believes there is sufficient justification to prosecute the case as a felony. 

The best hope in these cases is that through concerted negotiation a mutually agreeable resolution of the matter would be possible.  And in fact, experience has shown that mutually agreeable resolutions of these airport gun cases are in fact possible.  In practice, the Queens District Attorney's Office, which is notoriously quite strict about illegal gun possession cases, in this narrow sliver of circumstances is willing to come to the negotiating table with some favorable options.  These favorable options, some of which can even involve no criminal conviction at all, are only going to be available to people who followed all the rules, and who have led good, non-criminal lives up until the current case.

Given the sorts of favorable settlements that can in some circumstances be available, as compared with the mandatory minimum 3 1/2 years in prison that most of the people in this category face, the need for experienced counsel familiar with the Queens District Attorney's Office and its policies is self-evident.

Often the people charged in these cases are utterly overwhelmed at the notion that they are being accused of a crime at all, let alone that they face a mandatory minimum of 3 1/2 years on a case to which they really have no credible legal defense. Of course my general philosophy of "Relax.  Think.  Breathe" certainly applies here, and in most cases reasonable, sane solutions to these cases are possible.  But wherever guns are involved and Queens County is involved, extraordinary care needs to be taken.

If you or someone you know is caught up in this nightmare scenario, we can help to do whatever we can to make sure the case ends favorably.  We have handled a great many of these cases over the years and we have so far managed to navigate our clients clear of this nightmare scenario.

Call us or text us at 718-268-2171 to discuss your case or to set up an appointment to discuss your case.