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Court Decides Possession of a Weapon Charge


Defendant allegedly fired a handgun at two individuals, who just prior to his firing, had fired a handgun at him causing him serious physical injury; handgun crimes.

Defendant was charged with two counts of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree for.
Subsequently, a New York Criminal Lawyer said the defendant requested that the defense of justification be charged and that the presumption not charged. Both requests were denied.

The defendant argued that the jury should be instructed that the defense of justification could negate the fourth element of the crime of Criminal Possession of a Weapon in the Second Degree, i.e., that the defendant possessed the loaded firearm with the intent to use it unlawfully against another.

The Court of Appeals has made it perfectly clear in in its rulings that the defense of justification is inapplicable to the crime of Criminal Possession of a Weapon in the Second Degree. The court held that justification does not negate a particular element of the crime charged and that because possession of a weapon does not involve the use of physical force, there are no circumstances when justification can be a defense to the crime of criminal possession of a weapon. The rationale was that a person either possesses a weapon lawfully or he does not and he may not avoid a criminal or felony charge by claiming that he possessed the weapon for his protection. Justification may excuse unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it.

There is no doubt that justification is not a defense to the charge but it implies that if a handgun is fired in self-defense, that fact does not counteract the element of the intent to use the handgun unlawfully against another. A Queens Criminal Lawyer said the result would be that a defendant would not be permitted to argue that he did not intend to use the handgun unlawfully even though he responded with deadly physical force to the use of deadly physical force against him.

However, there is another language in the court’s ruling which would indicate to the contrary, viz.: First, intent to use and use of force are not the same, and justification, by the very words of the statute is limited to the latter; Second, it does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting. Whether the People established that defendant possessed the weapon during that period ‘with intent to use it unlawfully against another was a question for the jury to determine.

The “continuum” referred to comports with the conclusion in another case decided by the court; the fact that the jury found that the shooting of the victim was justified under the circumstances at that time, by resort to the presumption, did not mean that the defendant lacked the intent to use the handgun unlawfully during the approximately two to three week period prior to the firing of the weapon at the victim.

Here, the indictment in each of the two counts charged the defendant with firing his handgun at a different named individual, so the People were precluded from using the “continuum” theory, and the defendant could properly argue that as to each victim he did not possess the handgun with the intent to use it unlawfully against that particular victim, as he was defending himself. Such claim does not equate with the defense of justification, as the subjective and objective elements mandated by court rulings, are not involved, nor is the duty to retreat relevant. Therefore, although the defense of justification cannot be charged to the jury, this avoidance of criminal liability is still available to the defendant.

On defendant’s second argument that the presumption did not apply because the two individuals who were fired upon by the defendant were named in the indictment, although there is no decision directly addressing this issue, all of the cases in which a defendant is charged with assaultive crimes involving a named victim, together with the crime of criminal possession of a weapon in the second degree, have referred to the presumption and by implication sanctioned its use in these situations. A case decided by the court is particularly illustrative, because, there, while reference was made to the presumption, it was also found that the requisite intent to use the weapon unlawfully could be inferred from the circumstances surrounding the shooting. That is the same situation in the herein case.

Henceforth, the refusal to instruct the jury on the defense of justification and the instruction on the statutory presumption were proper.

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