darkoz
darkoz
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July 26th, 2016 at 8:35:22 PM permalink
Recently I was in a jury pool and heard the following interesting concepts pertaining to possession. The case was a gun possession case.

The DA asked everyone if they had ever rented an apartment. (Being in NYC almost everyone raised their hands)

Then he asked if they had a refrigerator supplied by the landlord (and being in NYC almost everyone raised their hands.)

"Now, when you moved into that apartment, you took possession of the unit and the refrigerator. Even if you were approached outside your apartment, if someone asked you if you were in possession of a refrigerator, everyone here would admit they were, correct?" (Everyone nodded affirmative).

"So possession can mean any item anywhere, even if you are not currently holding it. If you possess something, then there is no other answer but to admit to it."

With that the DA sat down and the defense attorney addressed us. It went something like this.

"I want you to follow the directions of the judge as pertains to the law of possession, not what the DA is trying to impress upon you. Since he used a kitchen example, let me give you one as well.

"How many people here have knives stored in their kitchen drawers?" (Everyone raised their hands.)

"How many people here have those knives hidden away in closed drawers so you don't see them when you enter the kitchen?" (Everyone raised their hands.)

"How many people here are aware that possession of a concealed weapon in NY is a felony?" (Everyone raised their hands.)

"So, how many people feel if a police officer approached you in the street and questioned if you were in possession of a knife in your kitchen draw, you should then be arrested for possession of a concealed weapon?" (No one's hands went up.)




I assume this was a possession charge that involved the guns not actually being discovered on the persons charged which is where the DA was trying to take it. Unfortunately (well, fortunately for me since I didn't really want to serve) I did not get picked from the pool so I didn't hear any evidence.

But I thought this was an interesting aside of what attorneys will do to persuade people into concepts of law.
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andysif
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July 26th, 2016 at 8:47:24 PM permalink
in this regard the 2 sides are actually trying to define the word "possess"
the DA defines the word "possess" as "own" and the defense defines it as "carry".

I think the DA is stretching it a bit too far and I would side with defense.
billryan
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July 26th, 2016 at 9:46:29 PM permalink
A kitchen knife is not a weapon. A first year law student would mock him.
The difference between fiction and reality is that fiction is supposed to make sense.
Ibeatyouraces
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July 26th, 2016 at 9:58:42 PM permalink
A pen in your pocket is just as much a weapon as a knife.
DUHHIIIIIIIII HEARD THAT!
darkoz
darkoz
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July 26th, 2016 at 10:32:18 PM permalink
Quote: Ibeatyouraces

A pen in your pocket is just as much a weapon as a knife.



Yes but if an officer is searching you see what happens differently if he finds a concealed pen vs. a concealed knife.
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gamerfreak
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July 26th, 2016 at 10:36:57 PM permalink
Police have a huge amount of discretion on the street.
onenickelmiracle
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July 26th, 2016 at 11:11:31 PM permalink
I would not be proud of that DA. Possession seems like it should be a difficult case without self-incrimination I would hope. I for one have no idea what is inside my house or car because I am not the only one using them and wouldn't know anyways. There are probably 100 different things I think are still here but went to the landfill the day after I last saw them. Hell I don't even know how someone can possess what is not presently on them someone can possibly obtain before them. No wonder everyone is in jail with jerks like that sending them away.

He says he wants people to admit they possess a refrigerator and they really can't say for sure because it may be stolen as they speak miles away.
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Wizardofnothing
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July 27th, 2016 at 8:22:30 AM permalink
Quote: billryan

A kitchen knife is not a weapon. A first year law student would mock him.



Well as someone who went through 1L and 2L and 3l. I would highly disagree with you and could easily argue that a kitchen knife COULD be a weapon
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MathExtremist
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July 27th, 2016 at 9:08:09 AM permalink
From a NY court website, the definition of "constructive possession":
Quote: NY courts

POSSESS means to have physical possession or otherwise
to exercise dominion or control over tangible property. Thus a
person may possess property in either of two ways:
First, the person may have physical possession of property
by holding it in his or her hand, or by carrying it in or on his or her
body or person.
Second, the person may exercise dominion or control over
property not in his or her physical possession. A person who
exercises dominion or control over property not in his or her
physical possession is said to have that property in his or her
“constructive possession.”


https://www.nycourts.gov/judges/cji/2-PenalLaw/220/AC.220.Constructive_Possession.pdf

And here's part of the NY penal code:
Quote: New York Penal Law § 265.01 Criminal possession of a weapon in the fourth degree

A person is guilty of criminal possession of a weapon in the fourth degree when:
(1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”;  or


http://codes.findlaw.com/ny/penal-law/pen-sect-265-01.html

So that appears to mean that owning a gun, Taser, or slingshot in New York is a crime. That can't be right generally, so can anyone with NY legal experience draw the line?
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cyberbabble
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July 27th, 2016 at 9:45:25 AM permalink
A sandbag is illegal?
Bludgeon: "a thick stick with a heavy end, used as a weapon".
Baseball bats are illegal in NY?
billryan
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July 27th, 2016 at 1:49:29 PM permalink
Quote: Wizardofnothing

Well as someone who went through 1L and 2L and 3l. I would highly disagree with you and could easily argue that a kitchen knife COULD be a weapon




Anything can be a weapon. I can take off a sock, load it with pocket change or a potato and beat you to death.
New York state law defines what types of knives are legal and illegal.
If someone beats a person to death with a baseball bat, does that make Derek Jeter guilty of possession of a weapon?
The difference between fiction and reality is that fiction is supposed to make sense.
Wizardofnothing
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July 27th, 2016 at 1:53:38 PM permalink
Well I didn't go to law school in nyc. But as with everything if it's used as a weapon in some states you can be charged with it
Just like if sex is consensual it's fine if it's not its rape
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billryan
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July 27th, 2016 at 2:58:46 PM permalink
Quote: Wizardofnothing

Well I didn't go to law school in nyc. But as with everything if it's used as a weapon in some states you can be charged with it
Just like if sex is consensual it's fine if it's not its rape



Yes, if you hit someone with a bat, it's considered a weapon. But possessing a bat isn't a criminal offence.
Drive drunk and hit someone and in certain circumstances, your car can be a deadly weapon. Doesn't mean you can get arrested for being in possession of a car.
The difference between fiction and reality is that fiction is supposed to make sense.
Joeshlabotnik
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July 27th, 2016 at 6:20:18 PM permalink
Obviously, then, the real issue is whether you are allowed to carry a refrigerator on your person, since you might at any moment try to kill someone with it. And would it matter whether it was concealed or not?

Clearly, this vital Second Amendment question should be examined by the NRA (National Refrigerator Association).
TwoFeathersATL
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July 27th, 2016 at 6:48:33 PM permalink
Do not touch or threaten my refrigerator. I have rights.

I have a special place where I retreat to in uncertain times.
A safe place.
A dusty secluded refuge from the hard cruel world.

I'll be under my fridge if you need me.... 2F
Youuuuuu MIGHT be a 'rascal' if.......(nevermind ;-)...2F
EnvyBonus
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July 27th, 2016 at 7:05:36 PM permalink
Quote: darkoz


"So, how many people feel if a police officer approached you in the street and questioned if you were in possession of a knife in your kitchen draw, you should then be arrested for possession of a concealed weapon?" (No one's hands went up.)



The reason that the defense attorney's illustration is not a parallel to the DA's is because it's not illegal to conceal weapons in your own home. The DA was trying to illustrate constructive possession. The defense attorney was trying, probably intentionally, to mix the concepts of actual vs constructive possession with the defense of being on your own premises.
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