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Defendant Charged with Weapon Found in Car

On October 22, 1982 at around 2:00 am, car was parked in an alley near an apartment building. A man opened the car and sat in the car and slept in there. The man was able to get into the car because the car was owned by a friend of his.

A New York Criminal Lawyer said a resident in the apartment building called the police to report the man sitting in the car. When the police arrived at the scene, they found the car and they found the man sleeping in the car just as the resident of the apartment building described.

The police woke the man up and told him to get out of the car. When the man had gotten out of the car, the police checked and searched the car. Between the driver’s seat and the front passenger seat they saw a console. When they checked the console, they found a gun inside the console.

The police then arrested the man for criminal possession of a weapon. A New York Criminal Lawyer said charges were brought by the district attorney before the grand jury for felony possession of a weapon.

The man decided to testify for and behalf of himself before the grand jury. When he appeared before the grand jury, the members of the grand jury asked him questions as to whether he owned the car and why he was in the car. The members of the grand jury also asked whether the man’s fingerprints were found on the gun.

After the man’s testimony, the district attorney gave instructions to the grand jury. A New York Sex Crimes Lawyer said he told them that the Penal Law creates a presumption that a weapon found in a car is presumed to be possessed by all persons occupying the car.

The District Attorney did not tell the grand jury that that the presumption of possession because of the presence of a weapon in a car is not a conclusive presumption. The District Attorney did not inform the Grand Jury that the presumption may be disregarded in light of the evidence provided by the testimony of the man.

The Grand Jury returned an indictment charging the man with criminal possession of a weapon. The man pleaded not guilty at the arraignment and moved for the dismissal of the indictment on the ground that the indictment is fatally defective because the Grand Jury returned an indictment for criminal possession of a weapon only on the basis of the presumption that he possessed the gun because he occupied the car. He claimed that this violated his right to be presumed innocent until proven guilty.

The only question before the Supreme Court was whether or not the indictment was fatally defective because it was not returned by the Grand Jury on the basis of a prima facie belief that the man guilty of criminal possession of a weapon but because of the presumption of possession.

The Court ruled that a presumption of an element of a crime is not constitutional. A New York Drug Possession Lawyer said the presumption contradicts the presumption of innocence. Also, when the District Attorney did not inform the Grand Jury that the presumption can be rebutted by evidence such as the testimony provided by the man, the District Attorney invaded the Grand Jury’s duty of fact-finding.

The members of the Grand Jury are not lawyers. They do not know that presumptions are not always conclusive but they can be overridden by evidence. If the District Attorney had told them that the presumption of possession was rebuttable, they could have considered the testimony of the man. The failure of the District Attorney to inform the Grand Jury that the presumption of possession is not conclusive misled the Grand Jury.

The indictment was dismissed by the Supreme Court and the District Attorney was given leave to submit this case to another Grand Jury.

A New York City Gun Crime Lawyer will tell you that if a gun is found in your car, you will be presumed to possess the gun. They will also tell you that you can present evidence to assail the presumption. You that you can present evidence that your fingerprints are not on the gun or that the gun was not registered in your name. At Stephen Bilkis and Associates, their lawyers are willing to sit with you and brainstorm defenses you can use. Call Stephen Bilkis and Associates and speak with any of their NY Gun Crime lawyers at any of their offices in the New York area.

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