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On further review, Plaxico is still screwed

As promised, we’ve gone back and re-reviewed New York law in an effort to gauge the possibility that receiver-without-a-quarterback Plaxico Burress will duck, O.J.-style, pending felony charges in New York.

As to one of the potential charges, there’s hope.

As to the other, the only hope is for the jury to refuse to apply the law.

Burress faces charges under two distinct portions of Section 265.03 of the New York Penal Law.

First, Section 265.03(1)(b) prohibits the possession of a loaded firearm “with intent to use the same unlawfully against another.”

On the surface, that looks good for Burress, since the lawyer who looks like Danny DeVito sans male pattern baldness has been chirping incessantly about the absence of criminal intent.

But there’s a catch.  As we pointed out in December, Section 265.15(4) of the Penal Law states 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.”

So as we chase our tails on this one, it appears that the requirement of intent to use a loaded firearm unlawfully against another person is satisfied by mere possession of said loaded firearm.

(If you believe that your head is about to explode, please stop and have a beverage, or a pack of saltines.)

The presumption that possession equals intent to use, as we understand it, can be rebutted.  And this would explain the decision to testify; if the grand jury believes that Burress was only packing heat for protection, there would be no intent to use the gun unlawfully against another person.  (There’s also a chance that Section 265.15 doesn’t apply to gun cases, which would wipe out the presumption of intent.)

But there’s a huge catch to the apparent availability of an escape route.  The second charge that Burress faces has not “intent” requirement.  Section 265.03(3) of the Penal Law separately criminalizes any possession of a loaded firearm outside of a person’s home or place of business.

So, basically, unless Burress told the grand jury he was working for or living at the nightclub where the gun went off, he can’t escape liability under Section 265.03(3) — unless the grand jury revolts against a law that it deems to be unfair.

This same law could spell doom for linebacker Antonio Pierce, whose lawyer also has been banging the “no criminal intent” tom-tom.  If Pierce didn’t remove the clip before assuming possession of Plaxico’s gun and driving it out of New York and to Burress’ house in New Jersey, Pierce technically has violated Section 265.03(3).

So even though we’ve tried to find a way to give these guys the benefit of the doubt, it really is as bad for them as it seems — and with the prosecution now seemingly intent on throwing the book at both of them, the Mean Machine could be picking up a couple of new players.

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34 Responses to “On further review, Plaxico is still screwed”
  1. mholt59 says: Jul 30, 2009 12:54 PM

    If Plax escapes the mandatory minimum sentence on this, it will give credence to the fact that wealthy, or otherwise “connected” people do not have to live by the same laws as an ordinary citizen. This may in fact be the straw that would cause a huge uproar by the masses if the prosecutor ends up settling this case for less than what the law calls for. And no, I am not a Giants hater or Plaxico hater, but the reality of the situation is that he broke the law, a serious breach at that, and it is only by luck or Gods grace that someone innocent wasn’t killed or maimed. Sorry if he has to suffer the same consequences you or I would, given the same facts, but that’s exactly how the law is supposed to work.

  2. Yak says: Jul 30, 2009 12:55 PM

    What are the chances that Taco Bill has a team picture of the Mean Machine???

  3. brian forster says: Jul 30, 2009 1:02 PM

    If Pierce didn’t remove the clip before assuming possession of Plaxico’s gun and driving it out of New York and to Burress’ house in New Jersey, Pierce technically has violated Section 265.03(3).
    And who will be able to know whether or not this is true? Whether or not he actually removed the clip, can’t he just claim he did? Didn’t he drive it alone?

  4. Chris Fiorentino says: Jul 30, 2009 1:02 PM

    Florio, you sure can wear many hats. First you are king of all GMs(see the 5 keys to signing Michael Vick). Now you are King of the Legal World. It wouldn’t be so bad if you would say ANYWHERE that you are only giving us your crappy OPINION. However, every item you write that is not related to a contract being signed comes out like Gospel. And unless you have taken the vow of chastity, you should not be acting like those who read the Gospel….and just because Mrs. Florio sends you to the couch from time to time doesn’t mean you have willingly taken the vow.

  5. Prophet says: Jul 30, 2009 1:04 PM

    Not guilty on charges brought under Section 265.03(1)(b) and guilty on charges brought under Section 265.03(3)

  6. FumbleNuts says: Jul 30, 2009 1:08 PM

    Section 265.03(3) of the Penal Law separately criminalizes any possession of a loaded firearm outside of a person’s home or place of business.
    place of business: an establishment (a factory or an assembly plant or retail store or warehouse etc.) where business is conducted, goods are made or stored or processed or where services are rendered.
    Maybe the owner paid Plax to show up once in a while to be the Celebrity “figure” at the club?

  7. BAllen says: Jul 30, 2009 1:16 PM

    I think somebody should research how similar cases(no previous record, weapon registered in another state) have been treated in the state of NY. I’m willing to bet 99.99% of the violaters don’t go to jail.
    As far as Pierce goes, unless he and Burress had a conversation about whether or not the gun was registered in the state of NY before or after the incident happened how would he know a crime had been committed. People need to keep in mind accidentally shooting yourself in the leg is not a crime. Even if a conversation did take place about the gun not being registered, it would be awful hard to prove. Sounds like a classic case of bringing charges against another guy to try to make him testify against his friend.

  8. Moosechem says: Jul 30, 2009 1:22 PM

    Maybe Plax and Pierce can share the same jail cell together.

  9. Yak says: Jul 30, 2009 1:30 PM

    brian forster – Fingerprints on the clip….

  10. Citizen Strange says: Jul 30, 2009 1:33 PM

    God, if you really are up there…. please, PLEASE do not subject Plaxico to 20 torturous days of house arrest — see house — http://www.eviplist.com/flyers/4933681d7a47c.jpg
    Please God…just this one time….please… prove that you are merciful and please let this arrogant, self-centered millioinaire athlete catch a break.

  11. deymond says: Jul 30, 2009 1:37 PM

    The jury will be made of people with their own prejudices and opinions about guns, nightclubs, pro football players, and in Pierce’s case, loyalty. While most people have respect for the law, I these factors will weigh much more heavily in their determination than a single sentence in section 265.15(4). Regardless of their ultimate inclination to find Burress guilty or not guilty, the jury is likely to be filled with people who will conclude that possession of a dangerous weapon is not evidence of intent to commit harm, simply because membership in that jury necessitates being in the presence of armed law enforcement.
    And really, “O.J.-style”? I know how excited you get when people die, but that hasn’t happened, yet. Get back on your meds.

  12. mobb says: Jul 30, 2009 1:38 PM

    listen here racist clowns,anybody who thinks plaxico deserve a day in jail must be out of their freaken mind,R u clowns serious,he’s gun is registered in florida,he hurt nobody but himself and you want him to go to jail, what about all these white people committing these white collar crimes, they’re actually hurting others,yet none of you idiots question the law about that,why don’t you waste the time on criminals like the guys who shot and killed the boxer vernon forrest.I guess that’s irrelevant because the offenders are not athletes. Get your priorities straight retards

  13. TheNightPorter says: Jul 30, 2009 1:48 PM

    Since this is a legal post, I feel compelled to point out that the instrument which holds the cartridges for a semi automatic (or automatic, for that matter) hand gun is a magazine, not a clip.
    Please feel free to use the slang term “clip” when referring to all the other instances of football players shooting at people/being shot at by people or shooting at themselves – but let’s keep legal posts official.
    Of course, I’m sure anyone who carries a loaded gun in their sweatpants to a night club in a different state calls it a clip, so maybe my point is moot…

  14. BuffaloMike says: Jul 30, 2009 1:52 PM

    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    Mike write that 100 times on the board before you want to comment about gun possession charges.

  15. penguininbondage says: Jul 30, 2009 2:06 PM

    My earlier stance on lawyers still stands.
    Wheres the scotch and pills?

  16. promichael says: Jul 30, 2009 2:06 PM

    Mike, as you are well aware law can be ambiguous. Sometimes jurors will not apply the law because they believe the person being prosecuted is a victim. Maybe the little creative guy who reminds me of Danny DeVito also but with hair, can create something. There is no question that the Mayor and D.A. have an agenda other than the prosecution of an individual who broke the law. In the tennis world a female player named Martina Hingis was suspended for two years for a positive cocaine test. Two years later a French male player who also tested positive for cocaine was given a suspension of only two months because he claimed that his positive test came from kissing two girls in a niteclub…….and you thought you had heard everything.

  17. VonClausewitz says: Jul 30, 2009 2:08 PM

    This case isn’t about enforcing the law. We’ve known that for awhile. And it’s not about what could have happened when the gun discharged. Had a 3rd party been injured or killed in the accident it would be a completely different situation. This case is about civil liberties. It’s about fighting a punishment that far exceeds the crime. It’s about how far the government can shove a regulation down your throat in an attempt to curtail the constitution. That’s what it’s about, coulda woulda shoulda arguments aside.
    In the current political and economic climate the last thing the people who run the country want is an armed public. They might get mad after all when confronted with the truth that the constitution is meaningless protection against corporate interests. They might fight back. And nobody, particularly the wealthy elite in places like NYC home of financial corruption, wants to enable that. Hence the ridiculous law which Burress is being charged under at the publicly stated behest of billionaire mayor Bloomberg.
    All of you law and order types need to open your eyes to the convenience of using a spoiled jerk like Burress to further an agenda. You are being played.

  18. east96st says: Jul 30, 2009 2:11 PM

    BAllen says: “I think somebody should research how similar cases(no previous record, weapon registered in another state) have been treated in the state of NY. I’m willing to bet 99.99% of the violaters don’t go to jail.”
    And you would lose that bet. But you are forgetting that what happened with Plax is uglier than you describe. 1) the gun went off in a crowded public place and a person was shot (yes, it was the owner, but since he did not deliberately aim the gun at himself, it was just good fortune that a bystander wasn’t hurt) 2) he then proceeded to attempt to cover up the crime. 3) I believe Plax did have a record. At minimum, he has dealt with the police several times before, whether the charges were dropped or not I don’t know. However, to portray him as a choir boy that made one lone mistake is way off base. Finally, Plax had the money and the time to get a permit and his wife is an attorney who could have expedited the permit process for him. Now, if you can find a similar case to that one AND that person got probation, then you would have a valid point. Once that gun goes off and someone is bleeding as a result, you can pretty much kiss probation goodbye.

  19. houskat says: Jul 30, 2009 2:29 PM

    I think if I was on that jury,I would elect to let Plex go,cause if they can’t write a law that the average person can under stand what f*** good is it? Either you can have a loaded gun on you or not.

  20. Backinthesaddle says: Jul 30, 2009 2:29 PM

    Give Plax the “mandatory” 3 years. Turds running around shooting illegal guns is a scourge on our society. They enacted that law specifically for this reason. Now that a rich and famous turd gets bagged doesn’t mean the law shouldn’t be applied equally.
    I’m just hoping he doesn’t get an O.J. jury.

  21. AmhaTek says: Jul 30, 2009 2:39 PM

    Florio, wasn’t the gun dischared when he was trying to unload the gun or take the clip out however you say it? If thats the case couldn’t he make the claim that when he realized (or security pointed out to him) that what he was doing was illegal he was attempting to abide by the law when the gun went off? And does it matter that when the gun went off he wasn’t in a crowded space (agian if my memory is correct didn’t he and security go to the back so he coudl take the clip out??)?? Just curious

  22. whatthehellisgoingonoutthere says: Jul 30, 2009 2:45 PM

    # BuffaloMike says: July 30, 2009 1:52 PM
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    It is not a clip it is a magazine.
    Mike write that 100 times on the board before you want to comment about gun possession charges.
    ————–
    Uhhhhhhhhh……does anyone actually care? There are far more disturbing misuses of words than that!

  23. danlinker says: Jul 30, 2009 2:54 PM

    Florio, as a 25 year independent insurance adjuster, I have some knowledge of law, contracts, and how they apply. You know as well as I do that the word “presumptive” is ambiguous and could be argued. However, clearly, the second statute is specifically designed to amend the first one with regard to proving the intent to use it (the weapon) against another existed. The second statute would not exist if the state had not lost several similar cases using only the first statute. Therefore, it looks somewhat bad for him.
    But, with the unusual occurrence of him shooting himself vs using it on someone else or threatening to use it on someone else, I think his attorney can make a good argument. These two statutes are designed as “pile on” laws. They exist so if nothing else can be proved against someone, they can always fall back on that.
    I believe that since he did not have a criminal record prior to speak of, and he was not threatening anyone with it etc, that a good attorney can argue out of that.

  24. smilergrogan says: Jul 30, 2009 3:09 PM

    while the gun was originally registered in florida, that registration had expired, as i understood it at the time. sort of like his car registration and license which have been found to expired how many times, and the failure to pay bills and tickets how many times…
    and now plexiglas is sorry for all the things he did…again…just like all the previous times…
    like when coughlin suspended him a couple weeks before.
    as to von NRA; either its
    1. a vast conspiracy to take guns away from people before they attack wall street, or
    2. an attempt to keep thugs like plexiglas from showing off in the vip section of an upscale bar by flashing heat in close contact with other equally stupid jackasses…remember p. diddley shooting up a bar a few years before the law was passed and then walking by getting a good lawyer?
    go to the vast conspiracy argument when they outlaw hunting rifles and shotguns…if the question is should an idiot like this carry a loaded pistol in new york city then the obvious answer is no.

  25. east96st says: Jul 30, 2009 4:35 PM

    VonClausewitz says: “In the current political and economic climate the last thing the people who run the country want is an armed public. They might get mad after all when confronted with the truth that the constitution is meaningless protection against corporate interests. They might fight back”
    It’s one thing to be paranoid and delusional, it’s another to be an idiot. Buy any gun you want. Buy as many as you want. Turn your home into a fortress. As long as the US military supports the US government, NO uprising would have the slightest chance in hell. An armed public would last about ten minutes against the US Armed Forces. And that’s giving the helicopters nine minutes to get within firing range. The days of a second revolution being possible – we won’t even discuss whether it would be desirable to anyone but you – ended after World War II. The Civil War ended a long time ago. You really need to come to terms with that.

  26. VoxVeritas says: Jul 30, 2009 5:07 PM

    “listen here racist clowns”
    Oh, Lord. Here we go.
    “he’s gun is registered in florida”
    Not it’s not. And Florida is not NY.
    “he hurt nobody but himself”
    Could have killed someone else because he doesn’t know what the F he’s doing.
    “what about all these white people committing these white collar crimes”
    Which ones play in the NFL?
    “why don’t you waste the time on criminals like the guys who shot and killed the boxer vernon forrest.”
    They’ve got to catch the guy first.
    “I guess that’s irrelevant because the offenders are not athletes. Get your priorities straight retards”
    FO and have a nice day, racist idiot.

  27. joe6606 says: Jul 30, 2009 5:09 PM

    “he hurt nobody but himself and you want him to go to jail”
    —————————————-
    This is the fundamental line in the sand for this debate. Essentially there are those who think that it should be perfectly ok (ie non-criminal) to bring loaded weapons into crowded nightclubs, so long that no 3rd party is injured if the gun were to discharde.
    On the other side, there are those who think that anyone who is stupid enough to bring a loaded weapon into a crowded nightclub should be put in jail, even if the gun never discharges (or, as with Plax, the only person injured is the gun owner).
    New York has made it crystal clear via Section 265.03(3) that if if you bring a loaded weapon anywhere other than your house or job—you’ve commited a crime. There is no ambiguity.
    The unescapable fact is, that Section 265.03(3) exists because it is EXTRAORDINARILY dangerous to permit people to bring loaded guns into places such as nightclubs because..whooops..they tend to be fired, either intentionally or accidentally quite frequently.
    Only the most extreme gun loving right wing nutjobs could possibly think that a law that criminalizes bringing loaded weapons into places other than your home could possibly be a bad thing.

  28. VoxVeritas says: Jul 30, 2009 5:28 PM

    “As long as the US military supports the US government”
    I agree with you on most points regarding Burress, but the US military does not really support the US government, it merely follows it’s lawful orders. We’re are getting into seriously shaky ground when you talk about the possibility of using the military against US citizens for any reason whatsoever. In fact it’s not even shaky ground… the Posse Comitatus Act explicitly forbids using the military in such a way. Now I realize that conceptual prohibition is different from actual prohibition but I feel that if our military were ordered to attack US citizens on US soil they’d refuse on moral grounds and it would never progress to the legal grounds. Military personnel take an oath to defend the Constitution against all enemies and when the federal government becomes an enemy of the Constitution and by extension an enemy of the people, I have faith that our soldiers will realize who the enemies of the Constitution are. Not sure why this conversation is taking place in a conversation about a self-centered dumbass like Burress, he’s certainly not going to be the catalyst that creates another revolutionary war.

  29. tom coughlin's coat holder says: Jul 30, 2009 6:28 PM

    smilergrogan…guess what?the attorney that is defending plax is the same attorney that defended piss diddy.
    when you look at the photos of plax in front of the court house,the little guy next to him is the attorney.you know,the guy that comes up as high as plax’ balls.

  30. VonClausewitz says: Jul 30, 2009 6:56 PM

    Lol you guys kill me. My comments weren’t about armed rebellion. But it says a lot that you assumed as much.
    Many rich and powerful people want to make it difficult for people to carry guns. You can fill in the blanks why although it seems to me to be self-evident. Burress is a convenience to people with this agenda, such as Bloomberg.
    In terms of whether this case will be a catalyst…Well let’s look at it this way. There is nothing low profile about it. And both sides are committed to their fight. For Burress it’s his career. The case is open and closed and his defense is going to be all rhetoric. Which means constitutional spin will come up – you can bank on it. So let’s look at the ingredients in this recipe and try to figure out what we’re baking.
    1 part civil liberty rhetoric
    1 part lots of publicity
    1 part billionaire mayor / owner of financial news empire
    1 part era of financial malfeasance
    1 part crazy law
    2 parts no backing down
    =???
    This has all the hallmarks of being a “big deal”. Yall can believe what you’d like.
    Also Vox, nice name drop on Posse Comitatus. Riddle me this then. What’s the Army’s 3rd infantry division doing right now?

  31. VoxVeritas says: Jul 30, 2009 7:35 PM

    “What’s the Army’s 3rd infantry division doing right now?”
    I’ll go out on a limb and say that they are carrying out lawful orders that do not violate posse comitatus. From what I’ve read those orders include deployment to Iraq in an advisement and assistance role in the near future.

  32. VoxVeritas says: Jul 30, 2009 7:45 PM

    meant to add…
    “This has all the hallmarks of being a “big deal”. Yall can believe what you’d like.”
    C’mon, Burress isn’t the first guy to get busted with an unregistered handgun and I don’t think he’s even the most high profile guy to get caught. Or even the richest guy to get caught. This case is so unremarkable it’s not even funny. As I have said before, SCOTUS has been clear and consistent for well over 100 years that the Second Amendment only prohibits federal interference with the Constitutional right to keep and bear arms. SCOTUS has also been consistent that it will not allow any state or district to outlaw gun ownership altogether. This was affirmed just last year in District of Columbia v. Heller.

  33. jpinegar says: Jul 31, 2009 7:02 AM

    As a side note, wouldn’t the “presumption of intent” be there to provide probable cause for the police to detain someone?

  34. thegloryyears says: Jul 31, 2009 1:39 PM

    Mike Florio, run with me on this for a second…
    If Plaxico’s lawyer, could produce a document or some type of evidence that the club paid and/or compensated Plaxico to make an appearance at the club, wouldn’t that in a sense, mean that he was at his “Workplace” while he was carrying the firearm? Thus, nullyfying the law that he had an unlicensed weapon at the club? Compensation could be free admission, free bottles of alcohol, free VIP service, etc. Or, they may have in fact paid him for an appearance with money.
    I’m sure that Burress did not pay to get in the club. I’m also sure that he was in plain sight to the club’s guests and a picture could be painted that he was there increase attendance? Especially if his face was across one of the club’s flyers or announced on the radio.
    If this somehow makes it back to Plaxico’s lawyer and they use that to get off, tell them how I can be reached.

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