As described in the previous blog, section 10-131 of the New York City Code is somewhat convoluted and specifically 10-131(i)(3) contains two exceptions right in the Statute. 1. that the law does not apply to a person “authorized” to Possess a pistol or revolver. 2. that the law doesn’t apply to a dealer in rifles and shotguns. As explained previously, when a statute in New York contains an exception within the statute, the exception must be both pleaded and proved. In other words, the police are required to allege both that the defendant was not authorized to possess a pistol or revolver and that the defendant was not a dealer in rifles and shotguns. Absent those specific allegations in the accusatory instrument, the case should be dismissed.
This is unusual because, for example, in drafting a charge for possession of an illegal pistol, the police or prosecutor would not be required to establish that person was not authorized to possess the pistol. Rather, the possession of a license or some legal authority to possess the weapon is an exemption contained in a different statute. Since the exception is not found within the statute but rather outside the specific statute the police or prosecutor do not need to plead or prove the exemption.
Given the complexities involved in deciding when it is appropriate to move to dismiss a charge based upon the facial insufficiency of the accusatory instrument, and based upon the nuances of drafting a legally sufficient instrument, it is essential to have an experienced Criminal Defense lawyer review the charges before an arraignment to be able to advise about the best defense. Many Criminal Defense Lawyers are also former prosecutors who spent years drafting accusatory instruments. Many others have reviewed many accusatory instruments as criminal defense lawyers. It is important to find a lawyer that you can trust to offer you the very best advise on how to defend yourself.