New York Criminal Lawyer Blog
A cab driver was caught with a loaded .22 caliber revolver while in his taxicab on February 24, 1978. The District Attorney convened a Grand Jury to deliberate on whether or not to issue an indictment against the cab driver.
A New York Criminal Lawyer said the District Attorney accused the cab driver of criminal possession of a weapon in the third degree (a Class D felony) when he possessed a loaded firearm and his possession does not take place in his home or place of business.
When the District Attorney gave the Grand Jury instructions, he did not inform the Grand Jury that there is an exception to the crime of criminal possession of a weapon in the third degree: that if the man possessed the loaded weapon in his place of business, he can be charged with a lesser offense of criminal possession of a weapon in the fourth degree which is a misdemeanor.
The District Attorney did not inform the Grand Jury that since the cabbie drove a cab for a living, his taxicab may be considered his place of business. And this fact alone will entitle the cab driver to be indicted on a lesser offense of criminal possession of a weapon in the fourth degree.
The Grand Jury returned the indictment and the cab driver was charged and arraigned. He was later found guilty on that charge of criminal possession of a loaded weapon in the third degree. He appealed his conviction on the ground that the indictment should be dismissed because the Grand Jury proceeding was defective and evidence presented to the Grand Jury was legally insufficient.
The cabbie contended that the District Attorney did not even mention to the Grand Jury that at the time that he was apprehended and the loaded weapon was discovered in his possession, he was seated inside his cab. He did not display his weapon instead, he just had it in the cab with him as he was driving.
In considering the appeal, the Court noted that the law was enacted to discourage people from carrying firearms outside their homes and their places of business. A Westchester County Criminal Lawyer the firearm is in the home or in the place of business, then a presumption arises that the possession of the firearm is only for defense of the possessor’s person and property and not to accomplish any illicit purpose.
The Court also conceded that the statute is vague as to what it means by the phrase “place of business” and it is even more unclear what the exceptions to the “place of business” are.
The question of whether or not the cabbie merely had the gun for his personal protection or if he had the gun for some illicit purpose is an issue of fact that must be determined by a jury.
The Court also noted that the statute was unclear as to who has the obligation of adducing evidence of the exception. The statue is also vague as to whether or not the District Attorney has the responsibility to inform the Grand Jury that the cabbie’s factual circumstances may fall under the exception. As it was, the Grand Jury had the duty under the law not only to allege that the crime was committed, how the crime was committed, and that the crime does not fall within the legal exceptions.
When analyzed this way, it is clear that the Grand Jury could not have made the allegation in the indictment that the cabbie does not fall under the exception if the Grand Jury was not informed that the cabbie may fall under the exception.
Clearly, the District Attorney did not do his job to inform the Grand Jury of all matters of fact applicable to the determination of whether or not the cabbie did commit the crime of criminal possession of a weapon in the third degree because he failed to inform the Grand Jury that exceptions exist and that the cabbie may fall under the accepted exceptions.
The Court resolved to dismiss the indictment but gave the District Attorney the opportunity to ask leave of court to convene another Grand Jury to determine if the cabbie should be charged with criminal possession of a weapon in the third degree.
Have you been indicted for the felony of criminal possession of a weapon in the third degree? Did you know that there are exceptions? Call Stephen Bilkis and Associates today. Speak to any of their New York City Gun Crime lawyers to ascertain if you can fall under the exceptions. Whether you have been charged with a gun crime, sex crimes or a drug charge, we can help.