POSSESSION OF A WEAPON – Page 2 – New York Appellate Digest

The Fourth Department determined the evidence was sufficient to disprove defendant’s defense of temporary and lawful possession of a weapon, and explained how the justification defense relates to criminal possession of a weapon:

Even if, as defendant contends, he originally acquired the gun by disarming his alleged assailant in the course of a robbery, we conclude that the evidence is legally sufficient to establish that he thereafter possessed it with the requisite unlawful intent … . After evading his alleged robber, defendant returned to the scene of the robbery with the gun drawn and fired five shots, one of which struck his alleged assailant in the leg. Defendant then regained possession of his property, a duffel bag containing $27,000 in cash, and fled upon the approach of the police. Such conduct is “utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor”… .

Defendant further contends that he had no duty to retreat, but was justified in acting as he did, because the People failed to prove that he could have retreated with complete safety. We reject that contention. It is well settled that the defense of justification, which involves the “justifiable use of physical force” (Penal Law § 35.05 …), does not apply to criminal possession of a weapon … . Thus, the “duty to retreat” rule, which applies to the defense of justification in connection with the use of deadly physical force (see § 35.15 [2] [a]), is not relevant here. Nonetheless, justification is relevant to a defendant’s intent in using a weapon. In other words, “[t]he use of a firearm to engage in conduct that is justifiable under the law is not unlawful. Thus, an intent to use a firearm against another justifiably is not an intent to use it unlawfully” … . Here, however, the evidence is legally sufficient to establish that defendant “possessed the firearm with the intent to use it against another unlawfully and not solely with the intent to use it justifiably”… . People v Bailey, 1080, 4th Dept 11-8-13

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence. The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun. The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant was in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based on the testimony of the officer and the forensic scientist, it is possible that Fox – who the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling it previously (which may prove that defendant handled the gun at some point, but not at the date and time alleged in the indictment) or through secondary transfer (i.e., if Fox touched defendant and then the gun, transferring some of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty …. People v Graham, 104177, 3rd Dept 6-27-13

Tag Archive for: POSSESSION OF A WEAPON

Temporary Lawful Possession of Weapon Defense Disproved/Justification Defense in Context of Criminal Possession of a Weapon Explained

Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

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