Most criminal lawyers in Rochester NY deal with many illegal weapons possession cases due to New York’s strict laws in this area. However, only a handful of lawyers have what it takes to resolve these cases successfully. Basically, a lawyer must be a good negotiator and have the litigation skills to back it up. Most criminal defense attorneys and public defenders only have one of these skill sets.

The right to keep (own) and bear (carry) firearms are guaranteed in the Second Amendment.1 However, lawmakers have great power to regulate these things. For the most part, New York law doesn’t restrict gun ownership. But it does greatly restrict the ability to carry a weapon.

For example, New York is a may-issue state. Even if an applicant meets the minimum qualifications for an NYPL (New York Pistol License), local law enforcement may refuse to issue a permit. Additionally, for the most part, New York gun permits aren’t valid in nearby states, and vice versa. So, it’s little surprise that New York has one of the fewest numbers of gun permits per capita in the country.

Procedural Defenses that a Criminal Lawyer in Rochester NY May Argue

Possession cases, including illegal weapon possession cases, usually involve procedural defenses. Specifically, officers typically need search warrants before they can seize contraband. Search warrants must be based on probable cause. Generally, police officers collect evidence in lengthy investigations until they have enough proof to convince a judge to issue a search warrant.

Most gun possession cases don’t involve lengthy investigations. Typically, police officers stop people on unrelated grounds and find an illegal weapon during the course of a very brief investigation. Therefore, the seized property is inadmissible in court unless a narrow search warrant exception applies. Some examples include:

Plain View:

This exception often applies to automobile stops. Most criminal cases begin when an officer pulls over a motorist for speeding or another traffic violation. As the officer peers inside the vehicle, the officer may seize any contraband in plain view. This exception only applies if the stop itself was legal.

Automobile Exception:

For many years, police officers claimed they smelled marijuana and then searched vehicles under the automobile exception. This assertion, which was almost impossible to prove or disprove, served as the probable cause that evidence of a crime was in the car. Now that marijuana is legal in New York, at least for most purposes, this exception doesn’t come up much.


Property owners, or apparent owners, may give officers verbal consent to search their belongings. This consent must be affirmative and voluntary. “I guess I can’t say no” is not affirmative consent. Additionally, if officers threaten to get warrants if owners don’t consent, the agreement is arguably coerced.

On a related note, what should you say if an officer asks if you’re carrying anything illegal? There’s a healthy debate among criminal lawyers in Rochester as to the proper answer.

Usually, the best response is an honest response. Most likely, the officer will find the illegal item anyway. Furthermore, there’s an old saying that if you dig yourself into a hole and you want to get out, you must first stop digging.

Substantive Defenses

Illegal gun possession criminal charges are difficult to prove in court. Prosecutors must prove all three elements of possession, which are proximity, knowledge, and control.

The aforementioned automobile cases are a good example. Proximity is normally straightforward. According to New York criminal justice laws, if an item is in the passenger area, it satisfies this requirement, even if the item isn’t within arm’s reach.

Knowledge and control are different. If Tom is in the front passenger seat and a gun is under the back driver’s side seat, Tom arguably didn’t control the gun. That’s especially true if someone was sitting in that seat. Knowledge could be an issue under these facts as well. If Tom was a passenger, he may not have known the other occupants very well, which means he may not have known about the hidden gun.

These arguments may seem far-fetched to some. But a criminal lawyer in Rochester NY doesn’t have to “prove” anything. Criminal defendants must only poke enough holes in the state’s case to create reasonable doubt.

Get Help from a Qualified Criminal Lawyer in Rochester NY

Illegal weapons possession charges often don’t hold up in court. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.




The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

Ready to Take Charge of Your Case?

Call Today (585) 232-6830

The Law Office of Frank Ciardi - Rochester & Buffalo Criminal Defense Attorney

Call Us

Request a Free Consultation

    Visit Us

    45 Exchange Blvd Suite 400,
    Rochester, NY 14614
    View Map

    Follow Us