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The Overlooked Element of "Knowing" Criminal Possession of a Loaded Firearm

The Overlooked Element of "Knowing" Criminal Possession of a Loaded Firearm

Posted By Law Office of Mark A. Bederow || 5-Jan-2015

New York has some of the most restrictive gun possession laws in the United States. It is one of a handful of jurisdictions which does not grant reciprocity to any other state's valid firearm licenses. New York Penal Law Section 260.00(15) defines a firearm as "loaded" even if it is unloaded, as long as the person in possession of an unloaded firearm is also in possession of ammunition which would allow it to be fired.

New York employs a rigid sentencing structure which mandates a prison sentence of at least 3 ½ years for any person convicted of knowingly and unlawfully possessing a loaded firearm. Other than a few narrow exceptions, anyone indicted in New York for criminal possession of firearm faces at least 2 years in state prison, even if the district attorney's office makes the lowest plea offer permitted by law.

Lack of Knowledge is a Complete Defense to Weapons Charges

It is not uncommon for honest and decent law-abiding non-New York residents (frequently tourists) to find themselves facing years in a New York state prison merely because they entered New York with an otherwise lawfully possessed firearm. Non-residents usually find themselves confronting this nightmare scenario in one of two manners: (1) they "declared" their firearm (usually at an airport) or (2) they were pulled over for a minor traffic infraction, which resulted in the recovery of a firearm which had been placed in the glove compartment a long time before the person entered New York.

A person who "declares" the firearm in New York, although acting responsibly, obviously knows that he possesses it, even if he was unaware such possession was illegal. Ignorance of the law is not a legal defense in these circumstances; an effective defense requires that an experienced attorney present compelling mitigating circumstances to the prosecutor in the hopes that as a matter of discretion and in the interest of justice, the prosecutor will recognize that a prison sentence or even a criminal conviction would be unduly harsh. The Law Office of Mark A. Bederow, has been extraordinarily successful in obtaining dismissals and non-criminal resolutions in these situations. If you have found yourself in a similar situation, please do not hesitate to get in touch with our New York City criminal defense lawyer immediately.

In cases where a person credibly claims that he did not know that he possessed the firearm when arrested, the legal issues are much more complex. A person's lack of actual knowledge about the presence of a firearm in New York, irrespective of his understanding of New York's prohibition on firearms, is a complete defense to criminal possession of a weapon charges. Ironically, New York prosecutors are more likely to "credit" an individual who has knowingly "declared" the firearm by making a pre-indictment offer (and thus one not subject to the draconian sentencing scheme discussed above) than they are for an innocent person who was unaware that he possessed a firearm in New York. This is because New York prosecutors' inherent skepticism generally leads them to reject any claim that a person who lawfully purchased a firearm out of state did not know that he brought it to New York if it was recovered there.

Understanding the practical meaning of "knowing possession" and the evidentiary nuances indicative of a lack of knowledge will likely determine whether a law-abiding person stopped in a vehicle with a firearm serves time in a New York state prison or whether the charges will be dismissed and sealed. While police and prosecutors often assume knowledge in prosecuting a weapons case, skilled defense counsel must analyze all of the facts and circumstances to determine whether an individual knowingly possessed a firearm in New York.

A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. See, Penal Law Section 15.05(1). Knowing possession of a firearm means actual, conscious awareness of its presence. Thus, prosecutors must present evidence which establishes reasonable cause (to secure an indictment) and then proof beyond a reasonable doubt (at obtain a conviction at trial) that a person was consciously and actually aware that he possessed a firearm in New York. Although this sounds like an easy burden to meet, two of our recent successful representations demonstrate the difficulty prosecutors face in satisfying the knowledge requirement when credible evidence supports the claim that a person was unaware of his possession.

Past Successes

In one case, our client, a Florida landscaper who had lawfully placed a firearm in his glove compartment years earlier, drove to New York (where he had never been before) to help his girlfriend move back to Florida. He had never removed the firearm from his truck. During a traffic stop for a minor infraction, police recovered it from his glove compartment. He had not alerted police to its presence. He repeatedly told police and prosecutors that he did not consciously think about having a firearm in his car before he drove to New York. Other than the presence of the gun itself, there was no evidence which established he knew that he brought a firearm to New York. However, the Manhattan District Attorney's Office refused to believe him and demanded a guilty plea which included prison time. Rejecting prosecutors' offer to plead guilty for a crime which he did not commit, the client proceeded to trial. A Manhattan jury credited the defense argument that the prosecutor failed to prove that he knowingly possessed the firearm in New York, and acquitted him in less than 30 minutes. Two jurors who were interviewed by the New York Post after the not-guilty verdict specifically cited the prosecution's failure to establish the element of "knowing possession" as the basis for their swift acquittal.

In another recent case, our client, a Florida musician, drove to New York as part of a multi-state tour. Almost a year before he drove to New York, he had placed a firearm in his glove compartment. Police recovered it during a routine traffic stop. He did not alert police to its presence. He told the police that he did not consciously think about the presence of the gun at any time during his trip. Other than the recovery of the firearm in Queens, there was no evidence which supported prosecutors' contention that he knowingly brought it to New York. The Queens District Attorney's Office demanded a 2 year prison sentence. The innocent client rejected the offer and instead testified on his own behalf before a grand jury, where he truthfully described his lack of knowledge about the firearm's presence with him in New York. The grand jury credited his testimony and properly dismissed all criminal charges against the client.

The successful defense of unlawful possession of firearm charges in New York requires zealous advocacy from experienced and skilled counsel capable of analyzing all of the facts and circumstances before advising clients on how best to proceed during an intense and stressful, life-altering situation. Effective counsel must proceed with constant awareness of the consequences of each action taken in order to increase the probability of a favorable outcome. A person may have a complete defense which should result in the dismissal of all charges or he may have compelling mitigating circumstances which should also result in a favorable outcome.

Former NYC Prosecutor Fighting For You

The Law Office of Mark A. Bederow, has successfully handled several of these sensitive and high-stakes matters. New York City criminal defense attorney, Mark Bederow, has frequently appeared as a legal analyst on firearm possession issues on NRA News and other national and local print, television and radio media. If you have been arrested for criminal possession of a weapon, please contact our New York defense firm in order to discuss your legal options.

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