Imagine the following scenario: You get into the back seat of a car with
three of your friends - Alex is driving, Brian is in the front passenger
seat, Chris is in the back seat behind the driver, and you're sitting
next to Chris behind Brian. The four of you drive off and Alex takes a
left turn without signaling. Unfortunately, an unmarked (undercover) police
vehicle is parked on the opposite corner and observes the traffic infraction.
The police car activates its front grill lights and begins to follow the
vehicle, ordering it to pull over. Brian pulls a silver semi-automatic
handgun from his waistband, turns around and tosses it at your feet, urging
you to kick it under his seat and out of view. You're shocked –
you no idea there was a gun in the car...in a panic, you kick the gun
forward and out of sight.
The plain clothes police officers approach the car and ask everyone to
step out. One of the officers flashes a light into the interior of the
car and sees the reflection of a silver object under the front passenger
seat. Without asking a question, he reaches under the seat and retrieves
a silver handgun, which he determines to be loaded
Question: How do the police officers determine who to arrest? The answer
is easy - they arrest everyone. Alex, Brian, Chris, and you are all jointly
charged with Criminal Possession of a Weapon in the Second Degree in violation
of Penal Law 265.03(1)(b), which is a class "C" felony, and
which carries a maximum of 15 years in jail.
What is the police officers' authority to do this? The answer is the
"gun presumption" or "car presumption," which allows
the police to charge everyone in the car with possessing that one gun
pursuant to statute. Penal Law 265.15 states as follows: "The presence
in an automobile...of any firearm...is presumptive evidence of its possession
by all persons occupying such automobile at the time such weapon...is
found." The statute goes on to exclude the following scenarios:
"Except: (a) if such weapon...is found upon the person of one of the
(b) if such weapon...is found in an automobile which is being operated
for hire by a duly licensed driver in the due, lawful and proper pursuit
of his or her trade, then such presumption shall not apply to the driver;
(c) if the weapon so found is a pistol or revolver and one of the occupants,
not present under duress, has in his or her possession a valid license
to have and carry concealed the same.
In other words, if an unlicensed gun is found in a vehicle and not on the
person of one of the passengers (e.g., in their waistband), any and all
occupants (except a duly licensed hired driver) will be charged with possessing
that one gun. The fact that one gun can be "possessed" by more
than one person may seem contrary to logic, but the law distinguishes
between "possessing" something and owning it. In order to possess
something you simply have to exercise "dominion or control"
over it...i.e., be able to pick it up, kick it, use it, or hide it. There
is no numerical limit on how many people may possess something.
This is a common theme in New York gun possession: even though the gun
was "Brian's," the police never observed it on him –
arguably they'd be eyeing you with more fervor as the owner since
it was at your feet when the car was stopped. In any event, EVERY passenger
in the case would be facing serious felony charges.
If you or someone you know has been arrested and charged with possessing
a gun in a car, or any weapon for that matter, you need to hire an experienced
criminal lawyer. Some jurisdictions such as Manhattan have very strict gun enforcement
practices and recommend state prison in practically every gun case. Obviously,
it is not a matter to take lightly, and it is a must to have an attorney
who will defend you in such a situation.
“NEW YORK CRIMINAL LAWYERS ON DEFENDING POSSESSION OF A GUN IN A
criminal possession of a weapon,
penal law 265.03,
penal law 265.15,