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.