Defendant’s Temporary Possession of a Weapon Was “Innocent”

The Fourth Department determined defendant’s conviction for possession of a weapon was against the weight of the evidence. Defendant’s half-brother handed her the weapon just before he became involved in an altercation.  The court determined defendant’s possession of the weapon was “innocent:”

“Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose” … . “This defense of temporary and lawful’ possession applies because as a matter of policy the conduct is not deemed criminal” … . Furthermore, a “defendant is not required to prove that h[er] possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent” … . For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner” … . People v Holes, 2014 NY Slip Op 04643, 4th Dept 6-20-14