CJI2d[NY] Possession, Temporary and Lawful Defense

The defendant [as you are aware] has raised the defense of innocent possession of (specify weapon). ²

Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose.

A person has innocent possession of a weapon when that person comes into possession of the weapon in an excusable manner; does not use it in a reckless and dangerous manner; and maintains possession, or intends to maintain possession, of the weapon only long enough to dispose of it safely.³

Taking possession of a weapon for any period of time for the general purpose of protection in the future is not excusable and does not constitute innocent possession.⁴

The defense contends that the defendant:

(specify, e.g.: found the weapon; disarmed an assailant [and used it justifiably in self-defense]; intended to turn it over to the police; was about to turn it over to the police when arrested; turned it over to the police at the first opportunity).

There is no single factor that by itself determines whether there was innocent possession. In making that determination, you may consider:

any evidence which establishes that the defendant had knowing possession of a (specify weapon); and the manner in which the (specify weapon) came into the defendant's possession;

Note: The court should select and tailor as appropriate any of the following factors or others that are relevant to the evidence and the defendant’s contentions:

You may also consider:

whether the defendant took the (specify weapon) from an assailant and then used it,⁵ and whether that use was justified; ⁶

whether after obtaining possession of the weapon, the defendant used the weapon in a reckless and dangerous manner; ⁷

whether the length of time the (specify weapon) remained in the defendant’s possession was reasonable under the circumstances;⁸

whether the defendant had intended to safely dispose of (specify weapon); ⁹

whether the defendant had a reasonable opportunity to turn the (specify weapon) over to the police or other appropriate authority; and if and when the defendant did have such opportunity, whether the defendant did so;¹⁰

Note: Add if appropriate:

Or, if as the defendant contends, he/she safely disposed of the (specify weapon), or intended to do so, by another means,

whether choosing another means was reasonable and whether the defendant did so, or intended to do so, in a manner that did not, or would not, place or potentially place any person or persons in jeopardy from the discovery of the weapon and thus its potential use by another.¹¹

The defendant is not required to prove that his possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent.¹²

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NOTE: The following should be added to the list of elements of the pertinent offense:

and #. That the defendant’s possession was not innocent.