New York has some of the strictest gun laws in the country. Certain possession charges carry mandatory prison time. An arrest is not a conviction, though. The best defense depends on how police found the weapon and who had access to it.
Common defenses to a New York gun possession charge
Even in a state with tough gun laws, prosecutors must prove every part of the offense beyond a reasonable doubt. A criminal defense attorney can challenge the charge in five main ways:
- Unlawful search and seizure: The Fourth Amendment and the New York Constitution bar unreasonable searches. If officers stopped the defendant without a valid reason or searched a car or home without a warrant, the attorney can move to suppress the gun. If the judge agrees, the prosecution may lose its key evidence.
- Lack of knowing possession: Prosecutors must prove the defendant knew about the weapon and controlled it. If police found the gun in a shared apartment or a borrowed car, the attorney can argue it belonged to someone else. New York presumes that everyone in a car possesses a gun found inside. Exceptions apply though and the attorney can challenge the presumption.
- Valid license or exemption: A valid license can defeat many gun charges. New York also exempts some people, such as licensed dealers and certain police officers. The attorney should check the defendant’s license status on the date of arrest.
- Inoperable weapon: New York law defines a firearm as a weapon that can fire. If the prosecution cannot prove this, the court may reduce or dismiss the charge. Ballistics reports and expert testimony often settle the issue.
- Suppressed statements: Police must read Miranda warnings before questioning a person in custody. If they did not or if they kept asking questions after the defendant requested a lawyer, the attorney can move to suppress those statements.Which defense fits a case often turns on small details. These include where the weapon was found, what officers said before the search and whether any paperwork existed at the time. Strong defenses are often combined, so one case may involve a suppression motion and a challenge to whether the weapon meets the legal definition of a firearm.
How a New York criminal defense attorney strengthens the case
A New York criminal defense attorney can review the arrest report, examine the officers’ conduct and file the needed motions. If the case is not dismissed, the attorney can negotiate for reduced charges or represent the defendant at trial.
