Monday, October 23, 2006

AD4: Mere possession of defaced gun sufficient to prove defendant knew gun was defaced

People v Smith, 2006 NY Slip Op 07011 [available here]

To be guilty of Criminal Possession of a Weapon in the Third Degree ("CPW3") under subsection 3 of Penal Law 265.02, a defendant must possess the weapon with knowledge that "the weapon had been defaced." (Penal Law 265.02[3].) The Fourth Department held the defendant's mere possession of the visibly defaced gun was sufficient to establish that he knew it was defaced; from the decision:

[H]ere was no dispute that defendant possessed the defaced revolver on his person and that its condition was visible as he pointed it at the police officer in a shooter's stance. Photographs of the defaced revolver were admitted in evidence, and thus the jury was able to evaluate whether it was possible to possess the revolver without knowledge that its identifying features were illegible. "Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his [or her] hands". Moreover, "the recent and exclusive possession of the fruits of any crime warrants the inference of guilt, including . . . knowledgeable possession". "[I]t makes no significant difference . . . whether knowledge is presumed by statute or inferred by reasoning without the benefit of statutory presumption". Thus, we conclude that the People presented legally sufficient evidence that defendant knew that the revolver in his possession was defaced.

(Smith, 2006 NY Slip Op 07011.)

Yet another quasi-presumption that mere possession of a gun will give rise to in New York.