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.
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] ).
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.
(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.
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