Sentencing in New York - A Primer

by
Jill Paperno,
Special Assistant Monroe County Public Defender and
author of Representing the Accused: a Practical Guide to Criminal Defense (See)

This post is aimed at reviewing some basics of felony sentencing that those who don't handle it on a regular basis may not be familiar with yet.  First, most sentencing information can be found in Article 70  of the Penal Law, but it is dense and confusing, and even those who have practiced for years have trouble understanding it.  If you have questions about a sentencing matter, as with anything, talk to more senior attorneys.  The following rules are general - there are exceptions, and if you look at the statutes, there are many specific sentences for specific charges, so it's getting impossible to memorize the sentencing schemes the way attorneys could many years ago. 

There are three types of sentences involving straight (not intermittent) incarceration.  They are definite sentences, indeterminate sentences and determinate sentences. 

Definite sentences 
Definite sentences are sentences of one year or less, and they are served in local (instead of state) facilities.  They can run concurrently or consecutively with other sentences, although if they run with probation sentences and exceed the amount of time one can spend in jail while on probation they may void the probation part.  But that's a memo for another day.  They can be imposed for violations that permit jail time sentences, misdemeanors, and felonies for defendants who do not have "predicate" felonies (see below) and are convicted of felonies that do not require state prison 

A definite sentence is reduced by one third if a client does not lose good time while incarcerated (doesn't get into trouble in jail).  Definite sentences may be part of probation sentences (shock probation) and run at the same time as probation sentences.  The maximum definite sentence a person can serve on a misdemeanor while serving probation is 60 days, and the max on a felony is 6 months.   

Definite sentences can run consecutively.  Once a person has several consecutive definite sentences the time they spend in jail caps out at 2 years.  In other words, if they get three years consecutive on definite sentences they serve 2/3, or two years.  If they get four years it still caps at two years.  (I decided not to add statutory references because it would take me too long to write this but if anyone else wants to that would be awesome.) 

Definite sentences are not followed by post-incarceration supervision, such as parole or post-release supervision.  (By the way, probation is a sentence of supervision in the community that is in lieu of jail; parole and post-release supervision are sentences that follow a sentence of incarceration except when the sentence is directly to parole as a Willard sentence.) 

Indeterminate sentences 
Indeterminate sentences are imposed on two types of felonies - non-violent felonies and really bad felonies. 

An indeterminate sentence is a sentence that has a minimum and a maximum.  The minimum is the time a defendant must serve before s/he is eligible for parole.  It's not a guarantee of release - it's just the first time a defendant sees the Parole Board. Indeterminate sentences are served in state prison. 

Non-VFO Indeterminates 
If a client receives an indeterminate sentence such as 1-3, the client sees the Board after 1 year (but if there was jail time served prior to sentencing the 1 year is reduced by that time).  If a person is released after seeing the Parole Board they are released to parole, a form of supervision.  Jail time credit also reduces the maximum on an indeterminate. 

On an indeterminate sentence where there is a number for the max - like the "3" in the example - the defendant has to serve 2/3 before s/he is eligible for conditional release.  That means if the defendant has not lost good time in prison ( not lost time based on misbehavior) s/he can be released after 2/3 of the sentence to conditional discharge.  But be aware, in DWI and sex offense cases, the conditions are so onerous that a person may not get released at that time.  If a person is released at the conditional release date ("CR") s/he is released to a form of parole supervision, conditional release.  This is called being - you guessed it - "CR'd". 

If a person does not get released until the maximum date - the "3" in the prior example, that is called being "maxxed" (sp?) or "maxxing out" (sp?).  If you max, you are not on supervision afterwards. 

VFO, Drug, Sex Offense or Persistent Indeterminates 
If a client is convicted of an A felony (murder, certain sex offenses or drug offenses) or convicted as a persistent offender the indeterminate sentence still has a minimum and a maximum, but the maximum is life.  That means that a defendant must serve the minimum before being eligible for parole, and then can see the Parole Board.  As with other indeterminate sentences, if the defendant is not released at the first parole board meeting, they can return every two years or so - but that doesn't guarantee release.  In the case of a life sentence, the defendant may never be released by the parole board.   

The minimum time on indeterminate sentences can be reduced in some cases by participation in programming, but it is unlikely that will happen with a minimum of less than 3 years, since the programs take a while to get into and complete. 

Determinate Sentences 

Determinate sentences are sentences imposed for violent felonies.  They are periods of incarceration in state prison.  They include a single number that represents the time a person will spend in prison, and another number that represents a period of post release supervision.  Post release supervision is another word for parole (created after New York politicians claimed they were eliminating parole for violent offenders, if memory serves).  So the sentence may be described as something like "5 determinate, 2 1/2 post release supervision".   On a determinate sentence a defendant has to serve 6/7 of the time before s/he can be released.  Long story about what happens to that other 1/7.  If a person on a determinate sentence is released s/he will then be under post release supervision,. 

With non-VFO determinate sentences (drug cases), a defendant may be able to participate in programs to reduce the sentence another 1/7. 

Determinate sentences were enacted, again if memory serves - and it does less and less these days -  in 1998, so sentences prior to that time for VFOs were indeterminate, with minimums being half of the maxes.   

Predicate Felonies 

If a person has a prior felony conviction, that will affect the type of sentence they can receive on a new felony.  There are many issues relating to prior felonies in determining whether they constitute "predicate" felonies for sentencing purposes  - including whether the priors are actually felonies, whether there were legal issues at the time that prevent them from qualifying as predicates, and most importantly, when they occurred. Youthful Offender adjudications do not count as prior felonies.   A felony does not count as a predicate felony (except for persistent felonies and persistent violent - another memo for another day - phew - lots to do) unless the conviction was within ten years of the current offense.  So the easy example is if a person has a felony in 2005, and picks up a new charge today - clearly within the ten years.  If the prior constitutes a felony in NY and meets other statutory criteria, and was not a YO, the person is a predicate for sentencing purposes.  But what about if the felony was in 1998?  Can that qualify as a predicate?  Depends.  If the person spent time in prison or in jail - basically time incarcerated - between 1998 and now, and that time prevented the defendant from having ten years of "street time", then the person is a predicate.  In other words, if the 1998 conviction resulted in a 5-15 year sentence, and the defendant wasn't released until 2003, then that person hasn't had 10 years of street time and is a predicate felon for sentencing purposes. 

If a defendant has a prior felony, it does not affect the time they can spend on a definite sentence. 

If a defendant has a prior felony and a new non-VFO, on a conviction for the new felony, the sentence must be an indeterminate sentence.  The amount of time depends on what level felony the new charge is. 

If a defendant has a prior felony conviction and a new VFO, on a conviction for the new charge the sentence must be a determinate sentence with a period of post release.  The amount of time depends on whether the prior was a VFO or non-VFO, and the level of the new charge. 

A word about Jail Time Credit and Concurrent/Consecutive Sentences 

Once a person starts serving a sentence, they no longer accrue jail time credit toward their other charges.  If a sentence is imposed concurrently to another sentence, but the other sentence has concluded, the full sentence will have to be served.  These are often concepts that attorneys are not familiar with, and sometimes cause us to tell clients they will be serving less time than they actually wind up serving.  Please feel free to talk to more experienced attorneys when you're trying to work out dispositions that may be affected by other pending charges or sentences that have already been imposed.  The jail records office at the Monroe County Jail, and the New York State Department of Corrections Office of Sentencing Review is also helpful in figuring out what a negotiated sentence will actually mean to your clients. 

Sentencing in New York - A Primer

by
Jill Paperno,
Special Assistant Monroe County Public Defender and
author of Representing the Accused: a Practical Guide to Criminal Defense (See)

This post is aimed at reviewing some basics of felony sentencing that those who don't handle it on a regular basis may not be familiar with yet.  First, most sentencing information can be found in Article 70  of the Penal Law, but it is dense and confusing, and even those who have practiced for years have trouble understanding it.  If you have questions about a sentencing matter, as with anything, talk to more senior attorneys.  The following rules are general - there are exceptions, and if you look at the statutes, there are many specific sentences for specific charges, so it's getting impossible to memorize the sentencing schemes the way attorneys could many years ago. 

There are three types of sentences involving straight (not intermittent) incarceration.  They are definite sentences, indeterminate sentences and determinate sentences. 

Definite sentences 
Definite sentences are sentences of one year or less, and they are served in local (instead of state) facilities.  They can run concurrently or consecutively with other sentences, although if they run with probation sentences and exceed the amount of time one can spend in jail while on probation they may void the probation part.  But that's a memo for another day.  They can be imposed for violations that permit jail time sentences, misdemeanors, and felonies for defendants who do not have "predicate" felonies (see below) and are convicted of felonies that do not require state prison 

A definite sentence is reduced by one third if a client does not lose good time while incarcerated (doesn't get into trouble in jail).  Definite sentences may be part of probation sentences (shock probation) and run at the same time as probation sentences.  The maximum definite sentence a person can serve on a misdemeanor while serving probation is 60 days, and the max on a felony is 6 months.   

Definite sentences can run consecutively.  Once a person has several consecutive definite sentences the time they spend in jail caps out at 2 years.  In other words, if they get three years consecutive on definite sentences they serve 2/3, or two years.  If they get four years it still caps at two years.  (I decided not to add statutory references because it would take me too long to write this but if anyone else wants to that would be awesome.) 

Definite sentences are not followed by post-incarceration supervision, such as parole or post-release supervision.  (By the way, probation is a sentence of supervision in the community that is in lieu of jail; parole and post-release supervision are sentences that follow a sentence of incarceration except when the sentence is directly to parole as a Willard sentence.) 

Indeterminate sentences 
Indeterminate sentences are imposed on two types of felonies - non-violent felonies and really bad felonies. 

An indeterminate sentence is a sentence that has a minimum and a maximum.  The minimum is the time a defendant must serve before s/he is eligible for parole.  It's not a guarantee of release - it's just the first time a defendant sees the Parole Board. Indeterminate sentences are served in state prison. 

Non-VFO Indeterminates 
If a client receives an indeterminate sentence such as 1-3, the client sees the Board after 1 year (but if there was jail time served prior to sentencing the 1 year is reduced by that time).  If a person is released after seeing the Parole Board they are released to parole, a form of supervision.  Jail time credit also reduces the maximum on an indeterminate. 

On an indeterminate sentence where there is a number for the max - like the "3" in the example - the defendant has to serve 2/3 before s/he is eligible for conditional release.  That means if the defendant has not lost good time in prison ( not lost time based on misbehavior) s/he can be released after 2/3 of the sentence to conditional discharge.  But be aware, in DWI and sex offense cases, the conditions are so onerous that a person may not get released at that time.  If a person is released at the conditional release date ("CR") s/he is released to a form of parole supervision, conditional release.  This is called being - you guessed it - "CR'd". 

If a person does not get released until the maximum date - the "3" in the prior example, that is called being "maxxed" (sp?) or "maxxing out" (sp?).  If you max, you are not on supervision afterwards. 

VFO, Drug, Sex Offense or Persistent Indeterminates 
If a client is convicted of an A felony (murder, certain sex offenses or drug offenses) or convicted as a persistent offender the indeterminate sentence still has a minimum and a maximum, but the maximum is life.  That means that a defendant must serve the minimum before being eligible for parole, and then can see the Parole Board.  As with other indeterminate sentences, if the defendant is not released at the first parole board meeting, they can return every two years or so - but that doesn't guarantee release.  In the case of a life sentence, the defendant may never be released by the parole board.   

The minimum time on indeterminate sentences can be reduced in some cases by participation in programming, but it is unlikely that will happen with a minimum of less than 3 years, since the programs take a while to get into and complete. 

Determinate Sentences 

Determinate sentences are sentences imposed for violent felonies.  They are periods of incarceration in state prison.  They include a single number that represents the time a person will spend in prison, and another number that represents a period of post release supervision.  Post release supervision is another word for parole (created after New York politicians claimed they were eliminating parole for violent offenders, if memory serves).  So the sentence may be described as something like "5 determinate, 2 1/2 post release supervision".   On a determinate sentence a defendant has to serve 6/7 of the time before s/he can be released.  Long story about what happens to that other 1/7.  If a person on a determinate sentence is released s/he will then be under post release supervision,. 

With non-VFO determinate sentences (drug cases), a defendant may be able to participate in programs to reduce the sentence another 1/7. 

Determinate sentences were enacted, again if memory serves - and it does less and less these days -  in 1998, so sentences prior to that time for VFOs were indeterminate, with minimums being half of the maxes.   

Predicate Felonies 

If a person has a prior felony conviction, that will affect the type of sentence they can receive on a new felony.  There are many issues relating to prior felonies in determining whether they constitute "predicate" felonies for sentencing purposes  - including whether the priors are actually felonies, whether there were legal issues at the time that prevent them from qualifying as predicates, and most importantly, when they occurred. Youthful Offender adjudications do not count as prior felonies.   A felony does not count as a predicate felony (except for persistent felonies and persistent violent - another memo for another day - phew - lots to do) unless the conviction was within ten years of the current offense.  So the easy example is if a person has a felony in 2005, and picks up a new charge today - clearly within the ten years.  If the prior constitutes a felony in NY and meets other statutory criteria, and was not a YO, the person is a predicate for sentencing purposes.  But what about if the felony was in 1998?  Can that qualify as a predicate?  Depends.  If the person spent time in prison or in jail - basically time incarcerated - between 1998 and now, and that time prevented the defendant from having ten years of "street time", then the person is a predicate.  In other words, if the 1998 conviction resulted in a 5-15 year sentence, and the defendant wasn't released until 2003, then that person hasn't had 10 years of street time and is a predicate felon for sentencing purposes. 

If a defendant has a prior felony, it does not affect the time they can spend on a definite sentence. 

If a defendant has a prior felony and a new non-VFO, on a conviction for the new felony, the sentence must be an indeterminate sentence.  The amount of time depends on what level felony the new charge is. 

If a defendant has a prior felony conviction and a new VFO, on a conviction for the new charge the sentence must be a determinate sentence with a period of post release.  The amount of time depends on whether the prior was a VFO or non-VFO, and the level of the new charge. 

A word about Jail Time Credit and Concurrent/Consecutive Sentences 

Once a person starts serving a sentence, they no longer accrue jail time credit toward their other charges.  If a sentence is imposed concurrently to another sentence, but the other sentence has concluded, the full sentence will have to be served.  These are often concepts that attorneys are not familiar with, and sometimes cause us to tell clients they will be serving less time than they actually wind up serving.  Please feel free to talk to more experienced attorneys when you're trying to work out dispositions that may be affected by other pending charges or sentences that have already been imposed.  The jail records office at the Monroe County Jail, and the New York State Department of Corrections Office of Sentencing Review is also helpful in figuring out what a negotiated sentence will actually mean to your clients. 

by

Jill Paperno,

Special Assistant Monroe County Public Defender

In defending a client charged with criminal possession of a weapon it is important to be familiar with the various presumptions set forth in Penal Law 265.15.

(1) Machine-guns – presence is presumptive evidence that all in the area possessed

(2) Presence in stolen vehicle of items specified in the statute is presumptive evidence that all in the vehicle possessed

(3) Presence in an automobile of items listed is “presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found” except (a) if it’s on the person of one of the occupants (b) it is in a taxi so it does not apply to the driver, or (c) if it’s a pistol or revolver and an occupant, “not present under duress” has a license to carry and conceal.

            This is an important presumption to know.  When your client is a back seat passenger in a car occupied by three people including the driver, and the gun is found in front of the front seat passenger (or possibly even in the trunk), your client can still be charged.  But see People v. Wilt, 105 AD2d 1089:

Here, defendant testified in his own defense and called several witnesses who corroborated his story that he had only been in the automobile for five or six minutes to look for his girlfriend. He stated that he had never looked in the trunk of the car which had a missing trunk lock and did not know that a gun was inside the trunk. The overwhelming and uncontradicted evidence renders the statutory presumption of Penal Law unconstitutional as applied to this defendant. In our view, there is no “rational connection” between the discovery of the gun in the trunk and defendant's presumed possession (cf. Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57;  Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). Absent the statutory presumption, the evidence is legally insufficient to convict defendant of knowingly possessing a loaded firearm as a matter of law.

People v. Wilt, 105 A.D.2d 1089, 1090, 482 N.Y.S.2d 629, 630-31 (1984)There are some terrible cases on this.  You should consider whether to move against the indictment based on the use of the presumption before the grand jury, to seek clarification of the basis for the indictment in your request for the bill of particulars, and to attempt to avoid its use at trial.  If you cannot avoid its use, be prepared to be familiar with the jury instruction and argue against the application of the presumption (which constitutionally is actually a “permissive inference”) to the jury.

The presumption and automatic standing

            If a defendant is charged solely based on the presumption, the defendant has automatic standing to challenge the stop or seizure of the weapon.  (This does not mean the facts will necessarily be sufficient – see People v. Mendoza 82 NY2d 415.)  If the possession is charged based on actual or constructive possession and the presumption, there is no automatic standing.

The Court of Appeals in People v. Millan (supra ) recognized an exception to this standing requirement where the People charge the defendant with possession solely on the basis of the statutory presumption that allows a defendant to be convicted based on his or her mere presence in the automobile or room in which contraband is found (Penal Law § 220.25 [narcotics]; § 265.15 [weapons] ). The MillanCourt held, as a matter of fundamental fairness, that a defendant charged with actual possession solely on the basis of a statutory presumption has “automatic standing” to challenge the legality of a search. The “critical factor” (69 N.Y.2d at 518, 516 N.Y.S.2d 168, 508 N.E.2d 903) in the Court's holding was that the charged crime was founded “only” (id. at 519, 516 N.Y.S.2d 168, 508 N.E.2d 903) on the statutory presumption. Indeed, the Court stressed two more times that its holding was limited to cases in which the prosecution's case is based “solely” or “entirely” on the presumption (id.). Clearly, we must give effect to this unequivocal statement of the Court's holding. The fatal flaw in defendants' position is that it requires us to disregard that unequivocal statement.

People v. Cheatham, 54 A.D.3d 297, 299, 863 N.Y.S.2d 407, 410 (1^stDept 2008).

            In order to pursue your opportunity to have a probable cause hearing you should make every effort to establish that the charge of possession, if based on the presumption, was based solely on the presumption.  You can start by seeking a statement in your request for bill of particulars about the nature of the possession.   Request that the prosecutor specify whether the alleged possession of the weapon is based on actual possession, constructive possession or the presumption.  It is important to challenge a claim that the possession is alleged based on the presumption and some other type of possession, because if a defendant is alleged to have possessed two ways, the defendant is not entitled to automatic standing to challenge the stop and/or seizure.  So if the prosecutor alleges actual and constructive, don’t just accept their word for it.  Analyze what the nature of the possession is.  If the prosecutor asserts that it is actual possession, you probably still have a good basis to assert standing, at least as to the stop and seizure of the defendant that led to the seizure of the weapon.  If the prosecutor asserts that it is constructive, then consider whether it really meets the legal standard for constructive possession.

In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see, Penal Law § 10.00[8]; People v. Francis, 79 N.Y.2d 925, 582 N.Y.S.2d 982, 591 N.E.2d 1168; People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076 [evidence legally insufficient to establish defendant's constructive possession of cocaine found in back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room];⁷ People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140, affd. on opn. below, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [proximity of drugs in apartment and defendant's control of premises support conclusion of constructive possession]; People v. Diaz, 112 A.D.2d 311, 491 N.Y.S.2d 758 [evidence that defendant instructed another to retrieve and sell cocaine to undercover officer sufficient to establish defendant's constructive possession of cocaine]; People v. Rivera, 77 A.D.2d 538, 430 N.Y.S.2d 88 [defendant who commanded his brother to get a gun and pull trigger had complete dominion and control over gun]; cf., People v. Patel, 132 A.D.2d 498, 133 A.D.2d 38, 518 N.Y.S.2d 384, lv. denied, 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633 [in absence of any proof that defendant had authority over person in actual possession of gun, there is no constructive possession] ).

People v. Manini, 79 N.Y.2d 561, 573-74, 594 N.E.2d 563, 569-70 (1992).

            If there is no actual possession and no constructive possession that meets the legal standard, then the possession is based on the presumption, and you are entitled to automatic standing for purposes of getting the hearing. (In Cheatham, supra, the Appellate Court noted the defendant’s oral and written statements acknowledging his proximity to the cocaine in denying his claim to automatic standing. People v. Cheatham, 54 A.D.3d 297, 863 N.Y.S.2d 407 [2008])

            A word about motions seeking probable cause hearings – the law does not require that you provide an affidavit from your client.  But some judges, despite the clear statutory language, as well as the clear import of case law, still require an affidavit.  Sometimes making the record is more important.  Sometimes getting the hearing in order to have a shot at suppression or getting the opportunity to question the officers is more important.  Make sure you decide what to do based on what will help your case the most, but be careful about what you put in any client’s affidavit you provide to the court as it can be used against your client. 

(4)  Possession of a weapon…made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another. 

            What if the prosecutor now seeks to bootstrap the possession charge to a possession with intent to use unlawfully against another, using the presumption of unlawful intent contained in Penal Law 265.15(4)?  There is a bar to premising one inference upon another as a basis for conviction.  In People v. Dumas the Kings County Court articulated the basis for opposing the use of two presumptions together to elevate a count:

While Courts generally permit the introduction of proof of circumstances that may have “a fair and legitimate influence in determining the question involved ...” (see, People v. Razezicz, supra, 206 N.Y. at p. 270, 99 N.E. 557), the unsupportable “coupling” of two statutory presumptions, as occurred in this case, had the effect of preordaining a conclusion which the Grand Jury could never have reached by legally sufficient independent evidence. As noted by one commentator: “statutorily enacted ... permissive inferences have received the official imprimatur of the state; they have been enshrined in official rules of law expressed in formal legal language. These official actions convey disproportionate authority and carry more weight with juries than other items of admissible evidence” (see, Collier, The Improper Use of Presumptions in Recent Criminal Adjudication, 38 Stanford L.Rev. 423, 442 [1986] ). After scrutinizing the Grand Jury minutes, it is clear to this Court that the finding that defendant intended to use the weapons unlawfully against another did not flow naturally, logically or rationally from any provenfacts, but was based entirely upon the impermissible “bootstrapping” of presumptions. If the defendant had been the actual shooter or if she had physically possessed the weapons, a different result might ensue (see,People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87 app. den. 77 N.Y.2d 993, 571 N.Y.S.2d 919, 575 N.E.2d 405; People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783 app. den. 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582; People v. Lee, 154 A.D.2d 399, 545 N.Y.S.2d 786 app. den.75 N.Y.2d 772, 551 N.Y.S.2d 914, 551 N.E.2d 115; People v. Wooten, 149 A.D.2d 751, 540 N.Y.S.2d 533 app. den. 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894; People v. Wynn, 108 A.D.2d 768, 484 N.Y.S.2d 927). Indeed, if there had been a scintilla of evidence which might rationally support a charge that she intended to use the weapons, this indictment would be sustained (see, Matter of John N., 168 A.D.2d 386, 563 N.Y.S.2d 397; People v. Evans, 106 A.D.2d 527, 483 N.Y.S.2d 339). Here, the “intent” charges were proffered merely because defendant was present in the automobile, in which weapons were found. This, alone, was insufficient. (See, People v. Nieves,135 A.D.2d 579, 522 N.Y.S.2d 166 app. den. 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58; People v. Cummings, 131 A.D.2d 865, 517 N.Y.S.2d 225; People v. Wade, 122 Misc.2d 50, 469 N.Y.S.2d 571 supra ).

In conclusion, while this Court finds a sufficient basis in fact to support the rebuttable presumption that defendant possessed weapons³, (in that she appears to have knowingly participated in their transport from North Carolina to Brooklyn), there is no rational basis to invoke the further presumption that she also intended to use those weapons unlawfully against another.

People v. Dumas, 156 Misc. 2d 1025, 1029-30, 595 N.Y.S.2d 644, 647-48 (Sup. Ct. 1992)

(5)  Possession of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that the person who possessed it also defaced it.

But on the other hand, there is no “room presumption” for possession of weapons as there is for possession of controlled substances.

by

Jill Paperno,

Special Assistant Monroe County Public Defender

In defending a client charged with criminal possession of a weapon it is important to be familiar with the various presumptions set forth in Penal Law 265.15.

(1) Machine-guns – presence is presumptive evidence that all in the area possessed

(2) Presence in stolen vehicle of items specified in the statute is presumptive evidence that all in the vehicle possessed

(3) Presence in an automobile of items listed is “presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found” except (a) if it’s on the person of one of the occupants (b) it is in a taxi so it does not apply to the driver, or (c) if it’s a pistol or revolver and an occupant, “not present under duress” has a license to carry and conceal.

            This is an important presumption to know.  When your client is a back seat passenger in a car occupied by three people including the driver, and the gun is found in front of the front seat passenger (or possibly even in the trunk), your client can still be charged.  But see People v. Wilt, 105 AD2d 1089:

Here, defendant testified in his own defense and called several witnesses who corroborated his story that he had only been in the automobile for five or six minutes to look for his girlfriend. He stated that he had never looked in the trunk of the car which had a missing trunk lock and did not know that a gun was inside the trunk. The overwhelming and uncontradicted evidence renders the statutory presumption of Penal Law unconstitutional as applied to this defendant. In our view, there is no “rational connection” between the discovery of the gun in the trunk and defendant's presumed possession (cf. Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57;  Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). Absent the statutory presumption, the evidence is legally insufficient to convict defendant of knowingly possessing a loaded firearm as a matter of law.

People v. Wilt, 105 A.D.2d 1089, 1090, 482 N.Y.S.2d 629, 630-31 (1984)There are some terrible cases on this.  You should consider whether to move against the indictment based on the use of the presumption before the grand jury, to seek clarification of the basis for the indictment in your request for the bill of particulars, and to attempt to avoid its use at trial.  If you cannot avoid its use, be prepared to be familiar with the jury instruction and argue against the application of the presumption (which constitutionally is actually a “permissive inference”) to the jury.

The presumption and automatic standing

            If a defendant is charged solely based on the presumption, the defendant has automatic standing to challenge the stop or seizure of the weapon.  (This does not mean the facts will necessarily be sufficient – see People v. Mendoza 82 NY2d 415.)  If the possession is charged based on actual or constructive possession and the presumption, there is no automatic standing.

The Court of Appeals in People v. Millan (supra ) recognized an exception to this standing requirement where the People charge the defendant with possession solely on the basis of the statutory presumption that allows a defendant to be convicted based on his or her mere presence in the automobile or room in which contraband is found (Penal Law § 220.25 [narcotics]; § 265.15 [weapons] ). The Millan Court held, as a matter of fundamental fairness, that a defendant charged with actual possession solely on the basis of a statutory presumption has “automatic standing” to challenge the legality of a search. The “critical factor” (69 N.Y.2d at 518, 516 N.Y.S.2d 168, 508 N.E.2d 903) in the Court's holding was that the charged crime was founded “only” (id. at 519, 516 N.Y.S.2d 168, 508 N.E.2d 903) on the statutory presumption. Indeed, the Court stressed two more times that its holding was limited to cases in which the prosecution's case is based “solely” or “entirely” on the presumption (id.). Clearly, we must give effect to this unequivocal statement of the Court's holding. The fatal flaw in defendants' position is that it requires us to disregard that unequivocal statement.

People v. Cheatham, 54 A.D.3d 297, 299, 863 N.Y.S.2d 407, 410 (1^st Dept 2008).

            In order to pursue your opportunity to have a probable cause hearing you should make every effort to establish that the charge of possession, if based on the presumption, was based solely on the presumption.  You can start by seeking a statement in your request for bill of particulars about the nature of the possession.   Request that the prosecutor specify whether the alleged possession of the weapon is based on actual possession, constructive possession or the presumption.  It is important to challenge a claim that the possession is alleged based on the presumption and some other type of possession, because if a defendant is alleged to have possessed two ways, the defendant is not entitled to automatic standing to challenge the stop and/or seizure.  So if the prosecutor alleges actual and constructive, don’t just accept their word for it.  Analyze what the nature of the possession is.  If the prosecutor asserts that it is actual possession, you probably still have a good basis to assert standing, at least as to the stop and seizure of the defendant that led to the seizure of the weapon.  If the prosecutor asserts that it is constructive, then consider whether it really meets the legal standard for constructive possession.

In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized (see, Penal Law § 10.00[8]; People v. Francis, 79 N.Y.2d 925, 582 N.Y.S.2d 982, 591 N.E.2d 1168; People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076 [evidence legally insufficient to establish defendant's constructive possession of cocaine found in back room of grocery store in absence of evidence that defendant owned, rented or had control over or a possessory interest in store or room];⁷ People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140, affd. on opn. below, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 [proximity of drugs in apartment and defendant's control of premises support conclusion of constructive possession]; People v. Diaz, 112 A.D.2d 311, 491 N.Y.S.2d 758 [evidence that defendant instructed another to retrieve and sell cocaine to undercover officer sufficient to establish defendant's constructive possession of cocaine]; People v. Rivera, 77 A.D.2d 538, 430 N.Y.S.2d 88 [defendant who commanded his brother to get a gun and pull trigger had complete dominion and control over gun]; cf., People v. Patel, 132 A.D.2d 498, 133 A.D.2d 38, 518 N.Y.S.2d 384, lv. denied, 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633 [in absence of any proof that defendant had authority over person in actual possession of gun, there is no constructive possession] ).

People v. Manini, 79 N.Y.2d 561, 573-74, 594 N.E.2d 563, 569-70 (1992).

            If there is no actual possession and no constructive possession that meets the legal standard, then the possession is based on the presumption, and you are entitled to automatic standing for purposes of getting the hearing. (In Cheatham, supra, the Appellate Court noted the defendant’s oral and written statements acknowledging his proximity to the cocaine in denying his claim to automatic standing. People v. Cheatham, 54 A.D.3d 297, 863 N.Y.S.2d 407 [2008])

            A word about motions seeking probable cause hearings – the law does not require that you provide an affidavit from your client.  But some judges, despite the clear statutory language, as well as the clear import of case law, still require an affidavit.  Sometimes making the record is more important.  Sometimes getting the hearing in order to have a shot at suppression or getting the opportunity to question the officers is more important.  Make sure you decide what to do based on what will help your case the most, but be careful about what you put in any client’s affidavit you provide to the court as it can be used against your client. 

(4)  Possession of a weapon…made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another. 

            What if the prosecutor now seeks to bootstrap the possession charge to a possession with intent to use unlawfully against another, using the presumption of unlawful intent contained in Penal Law 265.15(4)?  There is a bar to premising one inference upon another as a basis for conviction.  In People v. Dumas the Kings County Court articulated the basis for opposing the use of two presumptions together to elevate a count:

While Courts generally permit the introduction of proof of circumstances that may have “a fair and legitimate influence in determining the question involved ...” (see, People v. Razezicz, supra, 206 N.Y. at p. 270, 99 N.E. 557), the unsupportable “coupling” of two statutory presumptions, as occurred in this case, had the effect of preordaining a conclusion which the Grand Jury could never have reached by legally sufficient independent evidence. As noted by one commentator: “statutorily enacted ... permissive inferences have received the official imprimatur of the state; they have been enshrined in official rules of law expressed in formal legal language. These official actions convey disproportionate authority and carry more weight with juries than other items of admissible evidence” (see, Collier, The Improper Use of Presumptions in Recent Criminal Adjudication, 38 Stanford L.Rev. 423, 442 [1986] ). After scrutinizing the Grand Jury minutes, it is clear to this Court that the finding that defendant intended to use the weapons unlawfully against another did not flow naturally, logically or rationally from any proven facts, but was based entirely upon the impermissible “bootstrapping” of presumptions. If the defendant had been the actual shooter or if she had physically possessed the weapons, a different result might ensue (see,People v. Coluccio, 170 A.D.2d 523, 566 N.Y.S.2d 87 app. den. 77 N.Y.2d 993, 571 N.Y.S.2d 919, 575 N.E.2d 405; People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783 app. den. 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582; People v. Lee, 154 A.D.2d 399, 545 N.Y.S.2d 786 app. den.75 N.Y.2d 772, 551 N.Y.S.2d 914, 551 N.E.2d 115; People v. Wooten, 149 A.D.2d 751, 540 N.Y.S.2d 533 app. den. 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894; People v. Wynn, 108 A.D.2d 768, 484 N.Y.S.2d 927). Indeed, if there had been a scintilla of evidence which might rationally support a charge that she intended to use the weapons, this indictment would be sustained (see, Matter of John N., 168 A.D.2d 386, 563 N.Y.S.2d 397; People v. Evans, 106 A.D.2d 527, 483 N.Y.S.2d 339). Here, the “intent” charges were proffered merely because defendant was present in the automobile, in which weapons were found. This, alone, was insufficient. (See, People v. Nieves, 135 A.D.2d 579, 522 N.Y.S.2d 166 app. den. 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58; People v. Cummings, 131 A.D.2d 865, 517 N.Y.S.2d 225; People v. Wade, 122 Misc.2d 50, 469 N.Y.S.2d 571 supra ).

In conclusion, while this Court finds a sufficient basis in fact to support the rebuttable presumption that defendant possessed weapons³, (in that she appears to have knowingly participated in their transport from North Carolina to Brooklyn), there is no rational basis to invoke the further presumption that she also intended to use those weapons unlawfully against another.

People v. Dumas, 156 Misc. 2d 1025, 1029-30, 595 N.Y.S.2d 644, 647-48 (Sup. Ct. 1992)

(5)  Possession of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that the person who possessed it also defaced it.

But on the other hand, there is no “room presumption” for possession of weapons as there is for possession of controlled substances.