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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 occupants therein;

(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.


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