Excusable Criminal Possession of a Gun
Imagine you are being chased down a NYC street by armed pursuers. They want to kill you. You don’t have a gun and you are not licensed to own a gun. A sympathetic but shady figure watching the chase emerges from the shadows and hands you a gun. You take the gun and hold it with a trembling hand pointed at the hunters on your heels. Just as you are about to squeeze the trigger to terminate the pursuit, permanently, you are tackled to the ground and cuffed by NYPD. Your attackers have vanished into the darkness.
And YOU are arrested for criminal possession of a firearm?
And then YOU are prosecuted by the District Attorney for a felony?
This week’s case is not exactly about what happened to you. But it does raise the same question: Is it ever okay to be holding a gun if you don’t have a license?
This is the trial of Lance Williams who was charged with several counts of attempted murder, assault, and criminal possession of a weapon in the second degree after he shot two people in the lobby of a large apartment building in the Bronx.
Testimony of Lance Williams:
Q: Where were you at the time of the shooting?
A: I was visiting my friend, Foe at his apartment, here in the Bronx.
Q: Okay, can you tell us what happened?
A: Yeah. I was through visiting Foe and I was leaving his place. When I was going out the building door downstairs I saw this guy I knew, Carson, standing outside with another guy.
Q: And you knew Carson?
A: Oh, yeah. Carson and his brother didn’t get along with me at all. Carson’s brother shot me twice, on two separate occasions, about five years ago. And Carson? He believed that I shot him that same year. He got hurt bad. But that wasn’t me.
Q: So you were exiting the building, and you saw Carson outside with his other guy?
A: Yeah…Like I said.
Q: Did you know who the other guy was?
A: No. Not at all. Never even seen him before.
Q: Did Carson see you?
A: Yeah. He looked right at me and I saw him, clearly, pull a gun out of his pocket.
Q: And what did you do?
A: I ran back through the lobby, and went back to Foe's apartment upstairs. I was scared!
Q: Was Foe still there?
A: Yeah. I told Foe that Carson was outside with another guy in a blue coat, and that Carson had pulled a gun.
Q: Did you say anything else?
A: I asked Foe to call the police. You know, to scare Carson away. But Foe wouldn’t do it. And then Foe’s old lady was asking me to get out.
Q: What happened next?
A: Foe grabbed a loaded gun and racked it -- you know, cocked it -- and put it on his waist. He told me that he would walk me out to my car.
Q: And did Foe do that?
A: Yeah. Me and Foe went down the stairwell to the lobby. So Foe was up front and when we got to the lobby. He told me that he saw a guy in a blue jacket. Then Foe hands me his gun and tells me to walk behind him. And then we get to the lobby.
Q: Now how long was this since you first saw Carson out in front of the building?
A: After I ran back up to Foe’s? I’d say 5 to 7 minutes.
Q: Was Carson still there when you came back down with Foe?
A: Yes. But he was inside now like down a hallway.
Q: And you were holding the gun at that time?
A: Yeah, I had it. He was going to shoot me. Carson had his hand in his pocket and lifted it upward, as if he was going to fire a gun at me.
Q: And what did you do?
A: I just blacked out and started shooting. I got off five shots across the lobby.
Q: And you hit Carson three times right?
A: Yeah. I also hit his buddy. After that, I ran outside.
Q: What did you do with the gun?
A: I handed the gun back to Foe and took off. NYPD picked me up a few days later.
Closing Arguments
The Defense:
Thank you, Your Honor; and, may it please the Court. Members of the jury: Since the inception of New York's prohibitions on possessing illegal firearms, we have recognized a defense of temporary and lawful possession, available to persons who possess an unlicensed weapon but are not guilty of a crime because of the innocent nature of the possession. People: in light of Lance's violent history with Carson and his family, his belief that he was being set up, his unfamiliarity with the building, Foe's acknowledgement that there was a man wearing a blue jacket in the lobby, and the fact that Foe thrust the gun upon Lance mere moments before opening the door to the lobby—Lance was in imminent danger! Therefore, his possession of the weapon was therefore lawful. You must find Lance NOT GUILTY.
The Prosecution:
Members of the jury. Having heard the testimony and seeing all the proof, you have no choice but to find Lance GUILTY.
Lance would be entitled to a temporary and lawful possession instruction only if there was proof showing that, once possession has been obtained, the weapon had not been used in a dangerous manner.
But, you all heard that Lance used the gun in a dangerous manner and, therefore, had no entitlement to that defense. Lance fired five shots in the lobby of a building, admittedly shooting two victims -- including a bystander not claimed to be posing any threat -- while Lance just blanked out. That’s right: he just blanked out, and he was "was just shooting" and "wasn't paying attention," and that he "didn't see anything until after everything was over."
Here, the only inference to be drawn from Lance's testimony is that he fired indiscriminately into the cramped lobby, in the middle of the day, seemingly unconcerned with the presence of other individuals in close proximity. Regardless of whether Lance came into possession of a pistol in an excusable manner, he used it in a dangerous manner. And he must be held accountable. Thank you.
The Jury's Verdict
We the Jury, find the defendant, Lance Williams…GUILTY of criminal possession of a weapon in the second degree.
Judge's Sentence
MR. WILLIAMS, I AM IMPOSING THE MAXIMUM SENTENCE PERMITTED BY LAW: 7 years behind bars for criminal possession of a weapon.
Lance’s lawyers appealed. The Court of Appeals AFFIRMED -- both, the jury verdict and the sentence were upheld. Lance goes to jail.
Conclusion
Back to our hypothetical at the beginning: YOU were being chased. Someone gave you a gun. You didn’t shoot the gun, so what will happen to YOU if you go before a jury? Well, the answer is not that simple. A clever prosecutor could argue that YOU were pointing the gun with the intent to shoot it. Remember, when YOU turned around with the gun, you didn’t say “stop, or I’ll shoot!” You turned to shoot. Period. Is that enough to make your illegal possession excusable? Maybe. Maybe not. If pressed, I would say you get away with it – NOT GUILTY. But there are prosecutors who read Cup of Joe that probably disagree. Hopefully, YOU will never have to find out.
Click HERE to read the full case.