Possessory Offenses Under New York Criminal Law

New York criminal law does not, generally speaking, attach criminal liability to actions that are not accompanied by the requisite level of “guilty knowledge,” or mens rea. Thus, most New York crimes are broken down into at least two elements, the “act” element, and the “knowledge” or “intent” element. Even when a New York criminal statute does not specify that a certain level of knowledge or intent is required, courts will read in such a requirement. Possessory offenses are an excellent example of how this principle is applied by the courts.

A possessory offense is one in which the “act” element of the crime is fulfilled merely by possessing a prohibited object. New York drug and gun crimes are common examples of possessory crimes. For example, under New York Consolidated Laws Article 265, “a person is guilty of criminal possession of a firearm when he or she … possesses any firearm.”

At first glance, the wording of the statute would seem to indicate that anyone who has a weapon in their possession, regardless of whether they know they possess it, is guilty of the offense. However, criminal law disfavors this type of strict liability. Thus, courts generally require that a defendant knowingly possess a firearm before imposing criminal liability. It is important to note that the term “knowingly” goes to the object itself, and not the prohibited nature of the object. For example, a defendant who knowingly possesses a weapon but does not know that it is illegal to possess the weapon will be found to have “possessed” the illegal weapon.

A related concept is that of constructive possession. The term constructive possession refers to possession of an object that is not necessarily on a defendant’s person, but is still within their “dominion and control.” Constructive possession often comes up in cases involving prohibited objects that are found in a car or other area where multiple people had access. For example, in a recent New York appellate case, the court found that the defendant “possessed” a handgun that was found on the area of the front-passenger floorboard of the car in which the defendant was the front-seat passenger. The court concluded that “based on the location and position of the firearm, which was visible [on the floorboard] of the passenger seat …, and the fact that defendant was seated in that passenger seat, … the jury was … entitled to accept or reject the permissible inference that the defendant possessed the weapon.”

Have You Been Arrested for a New York Possessory Offense?

If you have been arrested for the possession of drugs or prohibited weapons, contact the New York criminal law firm of Tilem & Associates. While it may initially seem difficult to beat a charge of gun or drug possession, especially if the prohibited items were taken from your person, the skilled New York criminal defense attorneys at Tilem & Associates can help. We have extensive experience filing motions to suppress physical evidence, including guns and drugs, and are prepared to argue all arguable motions on your behalf. To learn more, call 877—377-8666 to schedule a free consultation today.

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