In People v. Saunders, 85 NY2d 339 (1995), the Court of Appeals determined that a defendant could be criminally liable for attempting to possess a firearm in the third degree, in violation of Penal Law Sections 110.00, 265.02[1] and 265.01[1], despite the fact that the firearm was inoperable. In reaching its conclusion, the Court found that the evidence established Saunders' intent to possess a weapon, including his intent to use it against a specific target. The Court emphasized that its analysis did not apply to "constructive, attributive possession circumstances." Id. at 343-44.

This case presents a question the Court of Appeals has not yet addressed: whether possession of an inoperable gun, predicated on a theory of the permissive presumption of Penal Law § 265.15[3], qualifies for prosecution as attempted criminal possession of a weapon. For the reasons that follow, I find that it does not.

On July 12, 2011, Police Officer Timothy Seger and his partner Officer Aquino were on uniform patrol in a marked police van. While they were parked at East Gunhill Road and White Plains Road, Officer Seger saw a black four-door Ford drive past, heading west on East Gunhill Road. Officer Seger pulled out, and then saw the driver of the Ford make an "unsafe lane change," causing the driver of another car to stop abruptly. In addition, Officer Seger saw a "cluster of beads" hanging from the Ford's rear view mirror; according to the officer, these beads obstructed the driver's view.

There were three men in the car: defendant Barry McRae, who was driving, defendant Richard Martinez, who was in the front passenger seat, and defendant James Paige, who was in the rear passenger seat on the right side. Officer Seger noticed a cup that "had an odor of alcohol," and asked to see it. He also asked McRae to get out of the car so that he could "investigate."

At that point, Paige started to "fidget and move." He reached for his waist and bent down "to put something under the seat." Officer Seger asked his partner to watch Mr. McRae, and walked over to the passenger side, where he directed Paige to put his hands on the headrest, and Martinez to put his hands on the dashboard. He then "pulled" defendant Martinez out of the car, frisked him, and directed him to sit on the back bumper of the car. He did the same with defendant Paige. He then shined his flashlight into the rear passenger area , and saw a fanny pack, which he picked up. He felt "something heavy," and unzipped the bag. Inside was a semiautomatic .380 gun loaded with seven rounds of ammunition.

The weapon was submitted for ballistics testing, and was found to be inoperable. The ammunition in the weapon, however, was operable.

Defendant Barry McRae testified before the Grand Jury that co-defendant Richard Martinez called him numerous times on the evening of July 12, 2011, and asked him to pick him up, along with his friend, James Paige, to "have a couple of beers or whatever just to relax for the evening." McRae picked up Martinez, who was seated in the front passenger seat of the car. He then picked up Paige, who entered the rear passenger seat. McRae testified that he had never met Paige before that evening.

McRae was driving for "maybe five minutes" when he was pulled over by police officers. [*2]There were no containers of alcohol in the console of his car. He had not consumed any alcohol that evening, nor did he see Martinez or Paige drinking anything inside his car. He did not know that there was a gun in his car, and he did not see Martinez or Paige carrying anything when they got into the car. Nor did he see Martinez or Paige make any unusual moves once inside the car.

McRae also testified that when he and his co-defendants got to the 47th precinct, he overheard Martinez admit that he had brought a weapon. McRae asked him why he had put McRae " in the position where he got a weapon inside my vehicle. I would have brought him nowhere with me if he would have a weapon inside of my vehicle." Martinez apologized, and said that he should have told McRae about it before getting into the car.

The prosecutor charged the grand jurors pursuant to Penal Law §265.15[3] that "the presence in an automobile, other than a stolen one or a public omnibus, of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found." She instructed the jurors that the presumption was permissive, not mandatory. She also defined "possess" as encompassing actual and constructive possession. Finally, she advised the grand jury to consider the evidence separately as to each defendant, and that one defendant's statements could not be used to implicate the other defendants.

The Grand Jury voted to indict all three defendants for Attempted Criminal Possession of a Weapon in the Second, Third and Fourth Degrees, in violation of Penal Law §§ 110.00, 265.03[3], 265.02[3], and 265.01[1], and Possession of Ammunition, in violation of Administrative Code § 10-131(i)(3). Defendants Richard Martinez and Barry McRae were indicted for Attempted Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law § 265.02[1].

As part of omnibus motion practice, the People submitted the Grand Jury minutes for in camera inspection. Pursuant to CPL § 210.30[3], the Court directed the People to release portions of the minutes to the parties so that they could brief the issue of whether possession of an inoperable gun inside an automobile, predicated upon the theory of the presumption found in Penal Law § 265.15[3], is legally sufficient to establish attempted criminal possession of a weapon.

The law is settled that the People may charge a defendant with attempted criminal possession of a weapon, even when that weapon proves to be inoperable. People v. Saunders, 85 NY2d 339 (1995). Whether a defendant can be charged with that same crime when the People rely on the automobile presumption to establish possession depends on an analysis of the presumption statute as well as the reasons for assigning criminal liability for attempts to commit [*3]crimes.

The automobile presumption — Penal Law §265.15[3] and its predecessor statute — was designed to resolve the dilemma created when police discover a gun in an automobile with multiple occupants, none of whom have actual possession of the weapon. The statute created a presumption of knowing possession in order to satisfy the requirement for the culpable mental state. People v. Thompson, 202 AD2d 337 (1st Dept.); lv den., 83 NY2d 915 (1994). The presumption serves an important legislative purpose: to make it easier to prosecute people for the possession of operable, dangerous handguns. See, e.g., New York State Joint Legislative Comm. on Firearms and Ammunition, Legislative Document No. 12 at 9 (1964); New York State Joint Legislative Comm. on Firearms and Ammunition, Legislative Document No. 29 at 11-12 (1962).The presumption statute provides in pertinent part that the "presence in any automobile, other than a stolen one or a public omnibus, of any firearm .... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon ... is recovered."^[FN1] (emphasis added). While the Penal Law definition of firearm does not include operability, "inherent to our common understanding of what constitutes a firearm and key to its danger [is] its operability, i.e., that it is capable of discharging ammunition." William C. Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 39, P.L. art. 265, at 80 (2000). That "common understanding" has been engrafted into the definition by case law. See People v. Actie, 99 AD2d 815 (2d Dept. 1984). See also, People v. Cavines, 70 NY2d 882, 883 (1987); People v. Lugo, 161 AD2d 122, 123 (1st Dept. 1990); People v. Grillo, 15 AD2d 502 (2d Dept. 1961), aff'd, 11 NY2d 841 (1962).

Accordingly, an inoperable gun is not "within the category of weapons to which the statutory presumption applies." People v. Brown, 37 AD2d 623 (2d Dep't 1971) ( trial court erred in charging that Brown was presumed to have been in possession of bread knife and starter's pistol recovered from the car in which he was an occupant). Similarly, the statute does not apply to the possession of ammunition, which the People also charged in the indictment. Indeed, courts construe the presumption language strictly, and have dismissed cases that do not fit squarely within the statutory language. See People v. Dan, 55 AD3d 1042 (3d Dep't 2008); People v. Gabbidon, 40 AD3d 776 (2d Dep't 2007) (automobile presumption applies only to controlled substances, a category that does not include marijuana).

Moreover, permitting the People to rely on the presumption when a weapon is inoperable is inconsistent with the "aims and purposes of the penal law" that underlie the concept of assigning criminal liability for attempts to commit crimes. People v. Dlugash, 41 NY2d 725, 726 (1977). The focus in any attempt prosecution is on what the defendant intends to do and the actions he takes to carry out that intention. In other words, the question is whether a person's "intention and action, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions." Id. See also People v. Mahboubian, 74 NY2d 174, 189 (1989) (commonly [*4]given justification for punishing attempt to commit crime is that person who engages in attempt to commit crime is a dangerous as person who succeeds, and it would be unjust to punish only latter); People v. Campbell, 72 NY2d 602, 605 (1988). That is so even when, unbeknownst to the defendant, it is impossible to complete the underlying crime. Penal Law §110.10.

As long ago as 1986, the First Department reversed a conviction for attempted criminal possession of a weapon based on the automobile presumption. In re Vincent, 118 AD2d 429 (1st Dep't 1986). The court held that a conviction for attempted criminal possession of a weapon in the fourth degree was a "contradiction in terms, inasmuch as the underlying crime was based on a statutory presumption rather than on intent, and there can be no attempt to commit a crime in the absence of an intent to do so." Id. at 429-30 (citations omitted).

The Court of Appeals decided Saunders some nine years later. Nothing in that decision changes the conclusion reached by the First Department in 1986. Police officers responding to a report of a possible suicide found Saunders unconscious on a couch, a fully loaded .22-caliber handgun on a coffee table next to him. After being taken to a hospital, Saunders asked the arresting officer if he had found Saunders' gun. When the officer said that he had, Saunders answered, "Too bad. I wanted to kill the fucking D.A." Ballistics analysis demonstrated that the gun was inoperable. Accordingly, the People submitted a single charge of Attempted Criminal Possession of a Weapon in the Third Degree, PL §§ 110.00/265.02[1], and the grand jury indicted Saunders for that crime.

The trial court granted Saunders' motion to dismiss the indictment, concluding that a defendant could not attempt to commit a "strict liability" offense. The Second Department reversed, ruling that because Saunders' possession of the weapon "would have been an intentional and knowing one rather than one based on a statutory presumption (see Penal Law § 265.15), an attempt to commit criminal possession of a weapon is not a legal impossibility." People v. Saunders, 200 AD2d 640, 641 (2d Dept. 1994).^[FN2]

The Court of Appeals affirmed, carefully framing the issue as the viability of a prosecution for attempted criminal possession of a weapon "predicated on defendant's actual possession." (emphasis added). 85 NY2d at 340. The Court focused particularly on the "actor's mental framework" (id, at 344), as exemplified by the definitions of possess — the "voluntary, aware act of the possession of a firearm" — and attempt — "an act done with the specific intent to commit some other crime." (Id. at 341-342).

Viewed in that framework, the Court concluded that permitting a prosecution for attempted criminal possession of a weapon when the underlying crime is an impossibility was consistent with public and legislative policy, including the punishment of attempt crimes generally, and the "prohpylactic[ ]intercept[tion of ] the possession and use of weapons in an inordinately armed society." (Id. at 343). Saunders clearly intended to possess a gun, and also had a "particular target and victim." Thus, his mental state presented a danger that the Legislature "sought to deter, prohibit and punish by providing for that kind of attempted criminal [*5]culpability." (Id. At 344-45).

However, the Court made it equally clear that its analysis did not apply to "constructive, attributive possession circumstances," reasoning that "[w]hile numerous, varied. types of conduct by a criminal actor—intentional, knowing, nonintentional, implied, inferred and constructive—may qualify as an aware[ness]' necessary to constitute the possession' defining the underlying crime, they may not all theoretically qualify for attempt prosecutions (see, Penal Law § 15.00[2])." Id. at 344. The reason for the distinction is obvious: attaching criminal liability for an attempt crime under the circumstances in Saunders is premised almost exclusively on the actor's intent and state of mind. Where the People seek to premise liability on the automobile presumption, the defendant's intent is supplied not by an analysis of his conduct, his state of mind or the result he seeks to achieve, but by a statutory presumption.

Following the Saunders decision, the Second Department was confronted with the question the Court of Appeals left open: whether the People could charge a defendant with attempting to possess a weapon under a theory of presumptive possession. People v. Thompson, 239 AD2d 529 (2d Dep't 1997). The Second Department ruled that they could not. Citing its decision in Saunders (the decision affirmed by the Court of Appeals), the court ruled that it was "impossible to attempt to commit the crime of criminal possession of a weapon in the third degree based, as in this case, on a mental state which is presumed by operation of law." Id. at 530 (citations omitted). That reasoning applies to the facts of this case.

In order to establish a prima facie case of Attempted Criminal Possession of a Weapon, the People were required to present legally sufficient evidence that each defendant "intend[ed] to possess a weapon with the requisite underlying awareness...a mental frame of reference' present[ing] a danger which the Legislature sought to deter, prohibit and punish by providing for that kind of attempted criminal culpability." They had to present proof of "the proven state of [the]actor's mental framework [which] provides the basis for determining potential for and punishable dangerousness of acts in their attempt stage. [citations omitted]." Saunders, 85 NY2d 339, 344-45. Similarly, they were required to prove that each defendant intended to possess the ammunition contained in the weapon. The evidence before the grand jury was insufficient to establish that intent. If the People do have evidence that any or all of the defendants knowingly possessed the gun and its ammunition, and that their plan was to use it for some unlawful purpose, as in Saunders, the People are free to introduce that evidence to another grand jury.

In view of the foregoing, the indictment is dismissed as to all defendants with leave to re-present, in accordance with the guidelines set forth in this decision.

The foregoing constitutes the Decision and Order of the Court.

SO ORDERED.

Dated: Bronx, New York

August 1, 2012_______________________________

Ann Donnelly, JSC