In re Mark S.

Jul 20, 2000
Reporters:
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—Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about December 14, 1998, dismissing the delinquency petition, unanimously reversed, on the law, without costs, the petition reinstated and the matter remanded for ‍​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​​‌​​​​‌‌‌‌‌​​‌​​​​‌​‌​​‌‌‌​‌​‌​​‌‌‌​​​‌​‌​​​​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‍further proceedings.

Respondent was a passenger in the back seat of a livery cab, alongside his cousin, co-respondent John M., when they were arrested and charged with what would have been, for an adult, the criminal possession of a dangerous weapon. The arresting officers retrieved a loaded 9-millimeter semiautomatic handgun which had been spotted underneath the foot of the corespondent.

At a joint hearing, the co-respondent admitted that ‍​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​​‌​​​​‌‌‌‌‌​​‌​​​​‌​‌​​‌‌‌​‌​‌​​‌‌‌​​​‌​‌​​​​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‍“I had a gun in a cab,” whereupon respondent’s application to dismiss was granted on the ground that the co-respondent’s admission rebutted the statutory presumption of respondent’s possession. The court summarily rejected the Corporation Counsel’s request for a trial on the question whether the statutory presumption had been rebutted.

Penal Law § 265.15 (3), as relevant here, creates the presumption that all persons in a motor vehicle are ‍​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​​‌​​​​‌‌‌‌‌​​‌​​​​‌​‌​​‌‌‌​‌​‌​​‌‌‌​​​‌​‌​​​​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‍in possession of a firearm that is not actually “upon the person of one of the occupants therein.” The Court of Appeals has ruled that even a gun found in a bag is presumed to be possessed by all the occupants of a vehicle (People v Lemmons, 40 NY2d 505).

The presentment agency had a right to an evidentiary hearing to challenge the premise that the statutory presumption of ‍​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​​‌​​​​‌‌‌‌‌​​‌​​​​‌​‌​​‌‌‌​‌​‌​​‌‌‌​​​‌​‌​​​​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‍respondent’s possession had been overcome (see, Family Ct Act § 342.1). While we make no ruling on the merits today, we would note that a weapon presumed to be possessed by all occupants of a motor vehicle, under Penal Law § 265.15 (3), is often “owned” or actually “possessed” by only one of those occupants. That ownership or possession does not, by itself, negate the statutory presumption of possession by the ‍​​‌‌‌​‌‌​​​‌‌​‌​​‌‌​​​‌​​​​‌‌‌‌‌​​‌​​​​‌​‌​​‌‌‌​‌​‌​​‌‌‌​​​‌​‌​​​​​‌​‌​‌​​​​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‍other occupants as well. The co-respondent’s admission that he “had a gun” did not establish exclusive possession, as a matter of law. Concur — Sullivan, P. J., Rosenberger, Williams, Wallach and Buckley, JJ.