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
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.
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.
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
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.
We offer a
free consultation for all criminal cases.