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2 ppl 1 car 1 gun who gets charged with it when as report states gun was found in car no indication of where?

Brooklyn, NY |

driver/owner of vehicle was driving reckless and made a few crashes police tried to pull over but refused to stop car crashed and driver tries to flee the scene but I get possession charge for gun.. Driver walks with not even a ticket and arrested a week later for dv

Attorney Answers 5


  1. The police have discretion on who to arrest and it depends on where the gun is found. However, if the gun is not on someone's person generally the police arrest everyone under the automobile presumption, which states:

    PL 265.15(3). The presence in an automobile, other than a stolen one or a public
    omnibus, of any firearm, large capacity ammunition feeding device,
    defaced firearm, defaced rifle or shotgun, defaced large capacity
    ammunition feeding device, firearm silencer, explosive or incendiary
    bomb, bombshell, gravity knife, switchblade knife, pilum ballistic
    knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack,
    plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub or
    slungshot is presumptive evidence of its possession by all persons
    occupying such automobile at the time such weapon, instrument or
    appliance is found, except under the following circumstances: (a) if
    such weapon, instrument or appliance is found upon the person of one of
    the occupants therein; (b) if such weapon, instrument or appliance is
    found in an automobile which is being operated for hire by a duly
    licensed driver in the due, lawful and proper pursuit of his or her
    trade, then such presumption shall not apply to the driver; or (c) if
    the weapon so found is a pistol or revolver and one of the occupants,
    not present under duress, has in his or her possession a valid license
    to have and carry concealed the same.

    I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.


  2. Under the automobile presumption, cops feel they are authorized to arrest everyone in the car. Get yourself a good criminal defense attorney.


  3. Everybody

    I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer are not intended to be taken as legal advice. These opinions are based on New York practice. I may be contacted at 212-553-9300.


  4. They can't prove who the driver was so they can't charge him.

    Joseph A. Lo Piccolo, Esq.
    Past President, Criminal Courts Bar Association
    Hession Bekoff & Lo Piccolo
    1103 Stewart Ave, Suite 200
    Garden City, NY 11530
    516-408-3666 (o) / 516-408-3833 (f)
    Jlopiccolo@hbclaw.net

    I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.


  5. Constructive possession is attributed to all.

    If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.