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Although we often hear about a lack of gun control in the U.S., federal agents arrest around 7,000 individuals for firearms violations every year, and many more arrests are made at the state level. While the Second Amendment and current federal regulations do allow for legal ownership of a wide variety of firearms, you can face stiff criminal penalties if arrested for possession of an illegal weapon. Furthermore, felony convicts and others who have had their gun ownership rights revoked also face arrest, which are among the most common type of federal firearms. States and localities such as New York do go further than federal law in regulating firearms, requiring permits for pistol ownership and outlawing assault rifles. But what does it mean to have possession of a firearm in New York? Under the concept of “constructive possession,” defendants in firearms crime cases face legal challenges in asserting their criminal defense in New York.

Possession and Constructive Possession Defined

First off, it should be understood that possession is not the same as ownership. If you are holding a firearm, you are possessing it, regardless of whether someone loaned it to you even for a brief moment, you are transferring it to someone else, or you simply found it.

Constructive possession takes the concept of possession a step further. It says that a person can be considered to have possessed a firearm – and thus run afoul of any relevant firearm laws – even if the firearm was not literally in their possession. Specifically, New York courts have held that: a defendant has property in his or her constructive possession when that defendant:

  • exercises a level of control over the area in which the property is found, OR
  • exercises control over the person from whom the property is seized, AND
  • this control was sufficient to give the defendant the ability to use or dispose of the property

New York legal authorities have also said that two people can both have constructive possession over contraband when: “they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found.”

Defending Against Constructive Possession Charges

Taking the above definition, this means that prosecutors can bring charges for illegal possession of a firearm when the defendant is not literally possessing the firearm on his body or in his personal belongings, but where a gun is simply found on a person over whom he has control (e.g. a spouse, a child, a subordinate, etc.) or in property he possesses, such as a shared home, vehicle, or business.

That said, it is important to remember that prosecutors must prove every element of a firearms charge beyond a reasonable doubt, and an experienced criminal defense attorney can cast doubt and present contrary arguments against the prosecutor’s allegations.

Such defenses can take any number of specific forms, but might include questioning whether a defendant did in fact have control over the person or the property on which the firearm was found or whether the defendant was even aware of the presence of the firearm. Talk to an experienced criminal defense attorney about the best defense in your particular circumstance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.