People v. B
2018 NY Slip Op 04032
June 7, 2018
People v. B
2018 NY Slip Op 04032
June 7, 2018
People v. S
New York Slip Op. 02286
April 3, 2018
NY Criminal Defense and New York Penal Law 265.03 – Criminal Possession of a Weapon in the Second Degree
Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a “primer” for those not familiar with this offense and the strict liability it seems to impose on the accused.
The Second Amendment of the U.S. Constitution states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Gun owners often cite the Second Amendment when arguing against gun restrictions. However, gun owners, dealers, and collectors must follow state and federal laws if they wish possess a firearm, or run a business selling guns. Read on to learn more about state and federal gun laws.
Florida to New York Firearm Trafficking Ring Disarmed: Brooklyn DA Announces Arrest and 105 Count Indictment
The Brooklyn District Attorney’s Office has announced that along with the 105 count indictment against defendants for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.
According to the Brooklyn District Attorney’s Office: “The indictment includes charges for the sale or possession of 46 guns – including 28 semiautomatic pistols, six revolvers, three assault rifles, four sawed-off shotguns, and five rifles – to undercover detectives. On four occasions, detectives purchased a total of 40 guns. A fifth sale was arranged, but instead of carrying it out, officers raided the defendant’s Brooklyn safe house and 2 confiscated six additional guns. Through the investigation, ten additional guns were taken off the streets.”
Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or (2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or (3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or (5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person’s home or place of business; or (6) Such person knowingly possesses any disguised gun; or (7) Such person possesses an assault weapon; or (8) Such person possesses a large capacity ammunition feeding device. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; or (9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or (10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction. Criminal possession of a weapon in the third degree is a class D felony.
Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.
Federal law regulates gun ownership to some degree, including placing restrictions on the ownership of certain types of firearms. The National Firearms Act (NFA), for instance, places restrictions on the sale or possession of short-barreled shotguns, machine guns, and silencers. In order to purchase one of these “NFA firearms or devices,” owners must go through an extensive background check, purchase a tax stamp for the manufacture of the firearm or device, and register the weapon with the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ NFA registry. However, it should be noted that some states, including New York and California, have prohibited the ownership of these types of firearms and devices.
Defendant appeals from a judgment of the Supreme Court, Bronx County rendered December 10, 2007, convicting him, after a jury trial, of manslaughter in the first degree as a crime of terrorism, attempted murder in the second degree as a crime of terrorism, criminal possession of a weapon in the second degree as a crime of terrorism and conspiracy in the second degree, and imposing sentence.
A Bronx County Criminal lawyer said that on August 18, 2002, a fight among members of rival gangs broke out following a party in the Bronx. In the course of the fighting, shots were fired, resulting in the death of a 10-year-old girl and the paralysis of a young man. Defendant Edgar Morales, a member of a gang of Mexican-American young adults and teenagers known as the St. James Boys (SJB), was ultimately charged with having committed these shootings. In what appears to have been the first prosecution for a crime of terrorism under Penal Law § 490.25, the People proceeded against defendant on the theory that he committed the charged specified offenses as crimes of terrorism because he acted with the intent to further the alleged purpose of the SJB gang to “intimidate or coerce a civilian population.” The People alleged that the “civilian population” defendant and his gang targeted for intimidation comprised Mexican-Americans residing in the area of the Bronx in which the SJB sought to assert its dominance. This area is sometimes described in the record as the general vicinity of St. James Park, although the People’s expert witness on gang behavior testified that the area extends (east to west) from Webster Avenue to University Avenue and (north to south) from 204th Street to 170th Street.
A jury trial resulted in defendant’s conviction for three specified offenses as crimes of terrorism (manslaughter in the first degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree) and one non-terrorism offense (conspiracy in the second degree).
Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.
On the trial of the case, the court rejected the defendant’s argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from criminal liability under New York’s mistake of law statute. The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree.
The central issue is whether defendant’s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.
On Saturday afternoon, December 22, 1984, A, B , C, and D boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, C and B, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.
Defendant boarded this subway train and sat down on a bench towards the rear section of the same car occupied by the four youths. Defendant was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition. It appears from the evidence before the Grand Jury that A approached defendant, possibly with D beside him, and stated “give me five dollars”. Neither A nor any of the other youths displayed a weapon. Defendant responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit A in the chest; the second struck D in the back; the third went through C’s arm and into his left side; the fourth was fired at B, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab. After the criminal defendant briefly surveyed the scene around him, he fired another shot at B, who then was sitting on the end bench of the car. The bullet entered the rear of B’s side and severed his spinal cord.
The conductor went into the car where the shooting occurred and saw defendant sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparent taken cover, also lying on the floor. Defendant told the conductor that the four youths had tried to rob him.
While on patrol in a marked radio car with a fellow officer, a police officer received a radio run reporting shots fired in the vicinity of 142nd Street and Rockaway Boulevard. Arriving at the scene within approximately two minutes, the police were waved down by a man. The latter reported that a friend had attempted to shoot him three times but the gun failed to fire. The police were directed to what was apparently the only apartment on the second floor of a building located at 142-90 Rockaway Boulevard.
A Queens County Gun Crime attorney said that the officer and other officers went to the apartment on the second floor, and upon discovering the door partly open, the officer, with gun drawn, announced that the police were there and were coming in. Upon entering the apartment, the officer observed an older woman in the living room, and he observed criminal defendant and another man emerge from a bedroom, approximately 12 to 15 feet away from the point of the officer’s entrance into the premises. Both men were put up against a wall and frisked. Neither was found to be in possession of a weapon. The man, having entered the apartment, identified defendant as the person who had attempted to shoot him. Defendant was arrested and handcuffed, and the second person who had emerged from the bedroom was released.
The Criminal Term concluded that the warrantless entry into the subject premises violated defendant’s constitutional rights pursuant to the dictates of a jurisprudence. The gun and the statements were suppressed as “Fruits of the Poisoned Tree”. The gun was also suppressed on the independent ground that “the defendant and the premises were secured at the time by four armed police officers who had ample opportunity to obtain a search warrant. “
In one evening, a Detective, who was assigned as backup to an undercover police officer who was attempting to buy controlled substances at a social club. There is no evidence in the record that the undercover officer was able to achieve that objective. However, at 8:00 P.M., the undercover officer advised the Detective by radio transmission that a tall white male with a pony tail approached her inside the social club and asked her “if she wanted to take a hit of cocaine”.
A Queens County Criminal attorney said that approximately six hours after the defendant asked the undercover officer if she wanted a “hit” of the drug cocaine, the undercover officer left the social club, and the Detective and other police officers arrived at the social club. The police directed its occupants to leave, and “stopped” and searched the defendant and “everybody when they came out”. The Detective recovered a packet of cocaine from the defendant’s jacket pocket and a .38 caliber automatic gun from the defendant’s boot.
It is unclear from the record whether the defendant was arrested before or after the search. Our dissenting colleague’s conclusion that the defendant was “the first of seven patrons to be arrested and searched”, is based upon a statement of the defendant’s attorney made upon “information and belief” during colloquy. During subsequent colloquy, the defense counsel stated, also “on information and belief”, that the undercover officer was a “very beautiful” woman, and that the defendant “could have been just trying to pick her up”. Clearly, neither of these representations constituted evidence.