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.