We pointed out earlier today that one of the two counts pending against Giants receiver Plaxico Burress alleges that he possessed a loaded firearm with intent to use it unlawfully against another person (as opposed to, you know, himself).
A New York lawyer who peruses PFT has alerted us to Section 265.15(4) of the New York Penal Law, which provides that “[t]he possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”
In other words, merely having the loaded gun in his possession creates a legal presumption that Burress intended to use it to shoot someone else (as opposed to, you know, himself).
We’re told that it’s a rebuttable presumption, which means that Burress can try to persuade the jury that he actually didn’t intend to shoot anyone in an unlawful way. But this means Burress will have no choice but to take the stand and testify on his own behalf if he hopes to have any chance of beating this rap.
In most criminal trials, the defendant opts not to testify in his own defense; it’s a right guaranteed to him via the Fifth Amendment to the U.S. Constitution.
Taking the stand exposes the defendant to cross examination by the prosecutor, and it’s no coincidence that most defendants who take a seat on the witness stand eventually take a seat in a cell.
"PRESUMPTION" STATUTE HURTS PLAXICO'S CASE
Posted by Mike Florio on December 1, 2008, 9:35 PM EST
28 Responses to “"PRESUMPTION" STATUTE HURTS PLAXICO'S CASE”
Okay.
When he takes the stand, Plex can testify that he has a “friend” who was distraught because he was unable to fulfill his lifelong dream of becoming a banker. The gun actually belongs to this friend, and Plex was carrying the gun to prevent his friend from using it to commit suicide.
“yo yo ma.”
Now crank up the LiveBlog!
I can’t decide on Burress’ new nickname: Plaxicuffs or Plaxicon. Possibly just “Fleshwound” Burress would suffice. How ironic that just like the rest of his troubles this year, his most recent troubles are “self-inflicted”.
Right to bear arms, period.
The people you have to worry about will always have weapons. That’s why I will always carry means to self defense.
I read earlier (on this site) that Plaxico told security guards at the Latin Quarter that he was carrying the gun because he was wearing expensive jewelry and carrying a lot of cash. In other words, he was worried about getting robbed. Protection of property does not justify the use of deadly force as per NY law. Self-defense is one thing if he reasonably believed the would-be thief intended to do anything other than rob him, but if Plaxico intended to use the gun on someone simply to avoid handing over money or jewelry, he may actually be convicted on the tougher charge.
Me thinks the case would be Heller vs DC. You cannot ban all firearms so the law itself would be unconstitutional.
Hence the “NY doesn’t allow for self defense” argument is moot less NY courts see themselves as superior to the supreme court. Course the state does seem to be a constitution free zone.
Also most people who are going to rob a NFL player will do so with more then just mean words, hence any such attempt would involve a weapon as any reasonable would imagine.
Here’s an idea – leave the jewelery and cash at home! Don’t make yourself a target. (No pun intended;-)
Plax is flat out stupid – there are small household appliances with more brains. He’s also lucky he only shot himself and not a bystander.
I never said “NY doesn’t allow for self-defense”. I said NY doesn’t allow the use of deadly force to protect private property. And in regard to Heller v. D.C., that case dealt with registered guns and licensed owners. And I realize that the would-be thief would use a gun. But if a reasonable person would believe that they could avoid any violence by surrendering the property demanded by the thief, the use of a gun would not be justified.
I don’t know how this warped into NY is against guns. They are against carrying guns, which most States are, not owning them. So Burress was fine owning the gun (as long as it was licensed/registered). He just couldn’t carry it around with him.
You’re absolutely right. “Carrying” the gun is the problem. And he didn’t have a license to carry a concealed handgun. And as Mike Florio Esq. pointed out, the only person that will argue that Mr. Burress didn’t intend to use the weapon unlawfully is Mr. Burress. If Mr. Burress takes the witness stand, Mr. Burress probably won’t help his cause.
NY seems to be a crazy state with their gun laws and criminal justice system in general. First, 3.5 years for possession of an unregistered gun? Really? They don’t seem to care that it’s a right protected by the Constitution. Second, as one commenter stated earlier in response to my question, the DA’s office is an extension of the mayor’s office. Where else does the mayor get involved in prosecuting crimes? I guess theoretically they’re both part of the executive branch, buy I’ve never seen that anywhere else at the local level. Finally, this statute referred to in this post shifts the burden on the defendant to prove he didn’t have intent to harm anyone else. How does possessing a gun imply that? Shouldn’t the state have to prove intent rather than the defendant disprove it? I wonder if his lawyer’s best argument would be a constitutional challenge? Otherwise, he possessed a handgun in the wrong state, that’s for sure.
Not a big fan of assuming that somebody intended to use a gun to harm somebody simply because they weren’t carrying it legally.
The “presumption” that I bring to that situation is either 1) The defendant is an idiot who failed to understand the logistics or importance of properly registering a gun, or 2) The defendant lives in a state, such as NY or my state, MA, that dances on the line between reasonable gun control and attempting to curtail 2nd amendment rights (look up the licensing laws in Mass if you don’t believe me).
In Burress’ case, it’s probably more 1 than 2. He broke the law, he should do the time. But the state’s coy way of trying to coerce somebody into testifying by way of leveling unsubstantiated charges that are only rebuttable by personal testimony (or something close to it) is questionable.. particularly when the laws themselves flirt with infringement of a constitutional right.
Total Bunk and you know it.
He was entering a V.I.P. room, i.e keeping away from the public of the establishment. Unless one of the security personnel is one who can prove Burress is out to get him, this is total crap.
Plus that little fact Burress was willing surrendering the firearm at the time also defines he has no attempt to harm anyone.
How many Cheerios box-tops did you have to send in to get your law degree?
Presumptions are unconstitutional in criminal cases because they relieve the prosecutor of his constitutional obligation to prove every element of the offense beyond a reasonable doubt. See Estelle v. McGuire, 502 U.S. 62 (1991).
At best, the NY statute could allow the jury to infer that Plax’s possession of the gun evidenced his intent to use it unlawfully against another. Plax won’t have to “rebut” the presumption because the constitution doesn’t allow the presumption.
It amazes me how states get around constitutional rights (like self incrimination). Presumed innocent … unless we say we are going to presume you guilty, but you can take the stand and tell us you are innocent, so we can hammer you on the other charge.
It amazes me even more how few people even care.
Especially not concealed and loaded. I hope Plax has a nice time in jail. What a moron.
If I was Plaxico’s lawyer(s), I would challenge the charge as unconstitutional. The Constitution affirms that citizens (militia) may bear arms. Just on the surface the charges appear very frivolous. If I didn’t know what country or any of the involved people, I would guess that such a charge would come from a socialist state or authoritarian state. Our founding Father’s are rolling in their grave by such a blatant overstep of the government.
Luckily for Plax, all he has to do is convince a single juror that the law is unjust. It’s not that hard; gun laws only prevent law-abiding citizens from protecting themselves. Criminals don’t care what the law says since they’re breaking it anyway. It’s the jury’s job to evaluate not only the charges but the law itself. Bloomberg is not dictator of NYC no matter how much he wishes.
As far as carrying is concerned, when criminals know that anyone could be packing, they are much less likely to commit crimes against other people. Concealed carry permits make people SAFER, not less safe. New York has its head up its ass.
Whats wrong with some of you people? Yes, we are granted the right to bear arms. But that doesnt mean you can carry a CONCEALED WEAPON into a nite club or any public place unless you have a carrying permit which I guarantee Burress did not.
This is against the law in every state not just NY. NY just prosecutes much harder for offenders. If you lived in NYC like I do, you would know why. You can own a firearm but you need a permit and thats just to have one in your home. No you cannot walk around with one hidden in your pants and thats fine. I have no problem with this law. This isnt made to take away your amendment rights. Its to keep punks from walking around with guns and shooting one another like in the Wild Wild West. So whats the problem here? If Burress was worried about being robbed, he should hire a bodyguard or a group of them.
What if he got drunk on the dance floor and fell and the gun went off and killed someone. Probable, no. but plausible yes. We have laws to protect us from morons like this from carrying guns in public. This is why. Keep the guns home if you want to own them. Dont jeapordize everyone elses safety
That’s a garbage law right there, that presumption.
But we’re dealing with a garbage ‘professional’ athlete so I don’t care so much.
dlmcc0505 says:
“Whats wrong with some of you people? Yes, we are granted the right to bear arms. But that doesnt mean you can carry a CONCEALED WEAPON into a nite club or any public place unless you have a carrying permit which I guarantee Burress did not.”
Oh, I’m sorry. Perhaps you could point out to me the wording within the Bill of Rights that explicitly states the 2nd Amendment doesn’t apply in certain situations.
“This is against the law in every state not just NY.”
Then that tells me that bad legislation is rampant.
“Its to keep punks from walking around with guns and shooting one another like in the Wild Wild West.”
From this I can infer that:
1. the law somehow prevents criminals from breaking it and carrying guns anyway; and
2. the only reason you do not carry a gun and shoot other people “like the Wild Wild West” is because there is a law against it.
Sorry, I do not share your compulsions. I am responsible enough that I can carry a loaded firearm without being tempted to shoot every person I see. And I know that when a criminal knows that I might be carrying, he is less likely to try to harm me.
And I also know that laws do not prevent a criminal from doing anything, since… well, they’re criminals. Duh.
“What if he got drunk on the dance floor and fell and the gun went off and killed someone.”
What if? Well, he didn’t, so clearly we can’t punish him for that, right? I mean, what if the Earth exploded; this entire discussion would be pretty moot, right?
“But we’re dealing with a garbage ‘professional’ athlete so I don’t care so much.”
I always care when it comes to garbage laws, because what can be used on one person can be used on any person.
I don’t care that he was carrying concealed–that is a legal right that most states (if not all) now recognize and provide the means for individuals to do so in a legal manner. HOWEVER, it is apparent from this incident that Burress was not doing so in a legal manner nor in a safe manner.
You don’t carry a pistol in a pair of SWEAT PANTS! And that’s an article stated he was wearing. Stupid mistake #1
Apparently he was carrying it sans holster–stupid mistake #2
He carried it into a place serving alcohol, which I think is illegal to do in most if not all states (not sure of all 50 state laws but I know in VA you can’t do that so I’m assuming that NY is the same given that their gun laws are harsher than VA’s)–stupid mistake #3
You don’t try to reach for a falling pistol with a drink in one hand–stupid mistake #4
The guy blatantly broke not only several legal laws but also common sense laws as well.
If you’re going to carry a pistol, then learn how to use it and to use it safely. Something Plaxico apparently never took the time to learn.
Oh, and most likely it was a Glock and Glocks have no “safety” per se. The safety is incorporated into the trigger action itself–referred to as a “safe action trigger.” That’s why so many idiots shoot themselves with Glocks–no separate safety feature.
This can be prosecuted several ways. But, a sanctimonious Mayor going out and saying this is going to be taken to the mat prejudges the case. Here (and I strongly disdain street animals) it should be clear Plax, having just been given a zillion buckeroos should have no problem convincing a jury he had zero criminal intent. No prosecutor can possibly characterize this superstar as a threat to public safety. So the Mayor needs to explain just why Plax needs to spend 3.5 yrs. in an already overcrowded prison system. Is there anyone who doesn’t believe there’s a whole bunch of real NY criminals right now carrying weapons a lot more dangerous than a simple hand gun. Is there a violation? – Sure. The DA needs to come up with a sentence that fits the violation that would benefit rather than penalize the public.
Geez. You people kill me with your misinterpretations of the Constitution. This is just as bad as people complaining about their first amendment rights when they get fired for insulting their boss, etc.
The Second Amendment was never intended to allow every Tom, Dick and Harry to possess a gun for whatever purpose they wanted. It was intended to protect the right of organization of citizen militias. The Supreme Court later expanded that to protect the right of an individual to have a gun when used lawfully… HOWEVER, States have the authority to regulate handgun ownership.
New York doesn’t say Plax can’t own a handgun. Read that again. He CAN HAVE A GUN.
But he can’t own a handgun without registering it with the state, and he can’t own a handgun and carry it around loaded and concealed without a permit. He was free to do so. He chose not to. You guys are talking like New York is trampling all over his Constitutional rights… please.
rarson says:
“Oh, I’m sorry. Perhaps you could point out to me the wording within the Bill of Rights that explicitly states the 2nd Amendment doesn’t apply in certain situations.
Then that tells me that bad legislation is rampant.”
Perhaps you would like to tell me how a State regulating the means by which a person may obtain/carry a handgun violates the Constitution. Or are you also against a waiting period for obtaining a handgun, age limits for handgun ownership, certain states banning assault weapons or weapons over a designated caliber, etc. That’s not in the Constitution either, is all that against the Constitution as well?
Or is it possible that… gasp!.. that merely regulating the means of obtaining/carrying a handgun DOESN’T violate the Constitution? No offense, but unless you’ve had a legal education or practical experience, you really don’t know what you’re talking about. The law isn’t like football, you can’t be an armchair QB without actually knowing it. Watching Law & Order doesn’t make you an expert… no matter how bad I’d like to be D.A. McCoy.