TWO COUNTS FOR BURRESS

For now, Giants receiver Plaxico Burress hasn’t been charged for reckless endangerment or any other crime relating to the discharge of a handgun in a public place.  Instead, Burress faces two counts under Section 265.03 of the New York Penal Law.
According to documents obtained and posted by The Smoking Gun (the name of the site was arguably never more appropriate), Burress faces one count under Section 265.03(1)(b) and another count under Section 265.03(3).
Section 265.03(1)(b) makes it illegal for a person to possess a loaded firearm “with intent to use the same unlawfully against another.”  Section 265.03(3) removes the “intent” requirement, and generally prohibits possession of a loaded firearm outside of a person’s home or place of business.
The first charge will be difficult to establish, since it will require proof beyond a reasonable doubt that Burress intended to use the gun unlawfully against someone else.  Burress would say that he intended to use it only in legal and proper self-defense.  The second charge will be much easier for the prosecution to prove.
So why add the initial charge?  In our view, it’s possible a clever tactic for compelling Burress to take the witness stand in his own defense, since the only way that he can comfortably prove that he had no intent to use the weapon unlawfully against another person would be to explain to the jury why he had the gun in his pants.
Either charge constitutes a Class C felony, punishable by a minimum jail term of 3.5 years.
The paperwork charging Burress also sets forth specific facts regarding the incident that resulted in the prosecution.  Prior reports had conflicted in this regard. 
Burress, per an unnamed informant, was holding a drink in his left hand and fidgeting with his right hand in the area of his waistline while entering the VIP area at the Latin Quarter night club. 
The informant then heard a “pop,” and Burress essentially said, “Take me to a hospital.”
The informant then say Burress’ legs begin to shake and, as they were shaking, a gun fell out of Burress’ pants and struck the ground. 
Burress is lucky the gun didn’t go off again when it hit the floor. 
And, depending on where the barrel was pointing when the gun landed, so is the informant.

39 responses to “TWO COUNTS FOR BURRESS

  1. very unlikely a Glock would have discharged by striking the floor but I guess I can’t say impossible because I don’t work for Glock.
    But I can say that Glock’s are engineered to discharge when held in the hand and finger on the trigger.
    as I have stated before Plax is a GD fool for having alcohol and a loaded firearm on him at the same time.
    I doubt it was his first drink of the evening but I cant prove it.
    you are right about one thing he is exceedingly lucky. He could have easily severed a major artery and been dead before he got to a hospital. The bullet also could have ricoheted and struck an innocent bystander and killed them. I can’t believe how stupid he is. He deserves every one of those 1277 days in jail. What a JERK!

  2. They need to take this pistol from this punk and give it to a responsible, licensed, law-abiding citizen.
    I’ve taken my licensed, concealed, loaded pistol into bars countless times. Never yet have I had a need to reach for it in any way. If you need to touch your pistol, you either need to defend your life, or you are not wearing it properly. There is no reason to adjust your pistol in public. Here in Pennsylvania, that can be viewed as “brandishing” and can get you in a heap of trouble. I wouldn’t be surprised if Plax was showing off the pistol, or at least trying to draw attention to it.
    No sympathy here.
    MOLON LABE

  3. It’s a good thing that he didn’t shoot off little Plax….
    He should come up with some story about how he was looking to buy the bar, thus a possible out with the place becoming his business.

  4. Mike….Love your site really I do…BUT you really should try to understand a little bit about the 2nd amendment and what and why the founding fathers gave us the second amendment. But I digress…..Handguns are made to NOT go off if and when they hit the floor. What you are describing happens in the movies…………….I may be misunderstanding your position on our god given right to bear arms but that aside the idea of the gun going off hitting the floor is just a little to much hollywood ……………..

  5. “Burress is lucky the gun didn’t go off again when it hit the floor.”
    Depending on the gun, this alarmist scenario is implausible. Does anybody know the type/action of the gun involved?

  6. “Burress is lucky the gun didn’t go off again when it hit the floor. ”
    You are watching too many movies Florio. Unless the firearm was defective, guns just don’t go off, the trigger needs to be actuated. Most modern firearms also have a firing pin block to prevent the inertia of the firing pin from striking the primer.

  7. To think a holster would have easily prevented this, but he just had to carry it gansta style. He’s a moron, no doubt, but a mandatory sentence for unlawful carrying is ridiculous. I hope he fights this to the highest court and wins, while he’s at it, he could do some good and get the draconian firearms laws repealed.

  8. An Alright Guy says:
    Welp its not the first time a safety has owned him.
    oh yes, my favorite plax comment yet.

  9. “So why add the initial charge? In our view, it’s possible a clever tactic for compelling Burress to take the witness stand in his own defense, since the only way that he can comfortably prove that he had no intent to use the weapon unlawfully against another person would be to explain to the jury why he had the gun in his pants.”
    Bad theory. Since when does the defendant have to disprove his intent? If he remains silent, it’s on the State to prove his intent, which is extremely difficult to do (I’ve tried it, with mixed success). Maybe the proseuction knows something we don’t, and that’s why they made this charge. Or maybe they’re reaching. Either way, Florio is certainly wrong about their reasoning.

  10. I’m sure next time Burress will think long and hard before pulling a gun on himself.
    Probably not the worst drop of Burress’ career, but right up there.
    Just goes to show, in any offense, burress is the main target.

  11. If it was a Glock, it can’t go off unless the trigger is pulled. The firing pin is not engaged until the trigger is 3/4 of the way back. Unless he was carrying a Colt single action revolver, aka the Lone Ranger, and the hammer was back, it can’t go off from being dropped.

  12. “So why add the initial charge? In our view, it’s possible a clever tactic for compelling Burress to take the witness stand in his own defense, since the only way that he can comfortably prove that he had no intent to use the weapon unlawfully against another person would be to explain to the jury why he had the gun in his pants.”
    He’s in the clear. The prosecutor is setting up a jury trial in Manhattan for a NY Giant. Apparently, he/she is NOT seeking to change venues. All Burress’ lawyer needs to do is get one Giants fan on the jury and it’s all over. No way the prosecutor can disqualify EVERY Giants fan from sitting on the jury. The DA’s office will present a “rock solid” case to the jury and then shake their heads on the courtroom steps after the jury acquits. Burress couldn’t ask for anything more.

  13. Florio, a legal question:
    When the section refers to “unlawful intent”, would the use of the weapon against another in self defense, with the weapon being unlicensed, be considered “unlawful intent”?
    i.e. since he didn’t have a license to carry, would ANY intended use of the weapon constitute unlawful intent?

  14. I’m thinking our team might sign Joliet Plax when he gets out. He and The Shank (aka Chris Henry) would make a “deadly” combo.

  15. toast.
    and busting on florio about the gun going off when it hit the floor thing? whatever. perhaps he was being sarcastic, who knows. but mike appreciates your continued clicking on the site. come on back now, ya heah?
    either way?
    toast.

  16. I see a kickass new TD celebration. The player that scores forms his hand into the shape of a gun, points his imaginary gun into his thigh, pulls the trigger, then starts shaking his leg. Please somebody… anybody…

  17. What a child. I don’t think a lot of these guys comprehend what a gun is used for. They liken it to the bling and jewelry they wear when they go out, just another useless status symbol.

  18. The handgun was reported as a .40 caliber that makes the weapon a semi-auto.
    Not only does Plax have to worry about the charges in NYC he also has to worry about the always inconsistent Roger Goodell for this season and beyond. The Giants could suspend him, cut him or whatever too. One thing almost guaranteed he will not be cut this season. Wonder if he will play a down for the Giants the rest of this season or ever again.
    Stupid is as stupid does. What a moron.

  19. Burress is lucky that New York hasn’t outlawed creepy facial hair. I wish Pierce would try to hide that!

  20. I think Plaxico just blew any chance he had of Santa leaving him a Red Ryder Daisy BB Gun on Christmas morning.

  21. No gun that just went off will fire again if dropped. Only a cocked weapon will go off when dropped, obviously the weapon could not have been cocked (nor was Burress likely carrying a revolver) if it had just fired.

  22. Burress just made Bill O’Reilly’s pinhead list. One’s professional career doesn’t get much lower than that.

  23. [east96st said: All Burress’ lawyer needs to do is get one Giants fan on the jury and it’s all over. No way the prosecutor can disqualify EVERY Giants fan from sitting on the jury.]
    Are you insinuating that every Giants fan in existence would choose to acquit no matter what evidence was presented during trial?
    I’d like to think most fans have the presence of mind and conscience to put their team loyalty aside when it comes to such matters.

  24. Mustang says:
    “Burress just made Bill O’Reilly’s pinhead list. One’s professional career doesn’t get much lower than that. ”
    Were you actually watching O’Reilly’s show? That’s the intellectual equivalent of scraping rock bottom. Burress is a moron, but I certainly couldn’t give the smallest shit about what O’Reilly has to say about anything, ever.

  25. mborz says:
    “Are you insinuating that every Giants fan in existence would choose to acquit no matter what evidence was presented during trial?”
    Nope. This particular case will draw the “star struck” juror like a moth to the flame. The Giants fans who are most likely to convict will do anything to avoid this trial because it will drag on forever and be a media circus. The Giants fans that just want to see Plax and desperately want to be part of the circus, will say anything to get on this jury. Plax only needs one that insists he’s innocent. Plax walks and the juror gets to make the rounds of daytime talk shows and gets his/her 15 minutes of fame. Been in NYC most of my life. You haven’t seen a freak show until you’ve seen a NYC celebrity trial. I only hope I don’t need to go downtown while this crap is going on.

  26. Here is the ironies of ironies. The massacre in India occurred preciously because the Islamic Fascist Terrorists had guns and the innocent people didn’t. The innocent people could not defend themselves. What would have happened if they had guns?
    I am afraid in America, there could be a similar attack at a shopping mall and public places. Americans will not be able to defend themselves. There guns have been taken away by draconian gun control laws.
    The Lefties don’t want anyone carrying guns. As a result, only criminals and Terrorists will have guns. Lefties don’t want to send pedaphiles and drug dealers to mandatory sentences. If you carry a concealed weapon, that’s 3.5 years. If anything, Burress should be sentenced to 100 hours of gun safety school.
    Our country needs to start deputizing more citizens and allowing them to carry concealed weapons to protect us from Islamic Fascist Terrorists.

  27. “Lefties don’t want to send drug dealers to mandatory sentences.”
    That’s not a “lefty” stance. What I mean is, if you decriminalize drugs, you take away the market for drug dealers. I think you are confusing dealers with users, because what are most often decried are the mandatory minimum sentences for non-violent drug users which clog the prison system and drain tax-payer money for no good reason.
    At any rate, with decriminalization, you lose the market for the dealers and the prison glut for the users. People wouldn’t shoot each other over marijuana if there wasn’t a black market for it.
    “If anything, Burress should be sentenced to 100 hours of gun safety school.”
    100 hours? That seems excessive, but other than that, I agree.
    “Our country needs to start deputizing more citizens and allowing them to carry concealed weapons to protect us from Islamic Fascist Terrorists.”
    No, our country needs to allow ALL citizens to arm themselves as per our 2nd Amendment right. Either that, or get rid of the Constitution.

  28. zayets says:
    “I am afraid in America, there could be a similar attack at a shopping mall and public places. Americans will not be able to defend themselves.”
    So it’s better that hundreds of people that haven’t had combat gun training pull out handguns and start shooting? Ask any veteran, it’s A LOT different when you’re not at the rifle range and someone is firing back at you. Plus, once you pulled your gun, how do I know if you’re a terrorist or a “friendly”? What’s to stop me from killing you or you killing me? Terrorists don’t wear uniforms. They wear street clothes so that most people CANNOT distinguish them in a crowd. And even arming every person in America does nothing to stop a suicide bomber. You’re looking for a simple answer to a very complex problem.

  29. From the statutes posted, it would seem that New York has attempted to make it difficult/impossible to legally carry a concealed firearm for protection. A celebrity like Plaxico is a huge target for assault/robbery. I can understand why he would risk breaking these unconstitutional “laws;” 3 years in prison > death. Burress’s biggest lapse of judgement in this whole brouhaha was not treating a firearm with proper respect.
    “Burress is lucky the gun didn’t go off again when it hit the floor.
    And, depending on where the barrel was pointing when the gun landed, so is the informant.”
    While comments like these are expected/appreciated on Oprah and/or The View, not everyone who reads PFT is a moron.

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