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Charged with possession of a weapon when no weapon found

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brinais2sweet

Junior Member
What is the name of your state? New York

My son had an argument with his girlfriend’s landlord. The landlord became angry, called police and told police that my son pointed a gun at him. The police arrived ready to pull their guns and asked my son where the gun was, they also searched my son and the area and found nothing. My son never had a gun and explained to police that the landlord was lying. My son was arrested and charged with criminal possession of a weapon. My son never had a gun, no weapon was found but he was charged with criminal possession of a weapon just because someone said he had a gun. The only thing that was found on him and was confiscated was a cell phone. He was released the following day and was advised by his legal aid lawyer that he may have to stand trial. Can this actually happen when there was no gun, no weapon of any kind? I assume that if there were a gun, the police report would have to indicate this. My question is how can he be charged with criminal possession of a weapon when nothing was found and would have to stand trial for this??
 


HomeGuru

Senior Member
brinais2sweet said:
What is the name of your state? New York

My son had an argument with his girlfriend’s landlord. The landlord became angry, called police and told police that my son pointed a gun at him. The police arrived ready to pull their guns and asked my son where the gun was, they also searched my son and the area and found nothing. My son never had a gun and explained to police that the landlord was lying. My son was arrested and charged with criminal possession of a weapon. My son never had a gun, no weapon was found but he was charged with criminal possession of a weapon just because someone said he had a gun. The only thing that was found on him and was confiscated was a cell phone. He was released the following day and was advised by his legal aid lawyer that he may have to stand trial. Can this actually happen when there was no gun, no weapon of any kind? I assume that if there were a gun, the police report would have to indicate this. My question is how can he be charged with criminal possession of a weapon when nothing was found and would have to stand trial for this??
**A: yes, he would have to stand trial.
 
S

seniorjudge

Guest
brinais2sweet said:
Without evidence?
I suspect maybe you do not know the whole story. Ask the cops what evidence they have and then post back.
 

conflix

Member
brinais2sweet said:
...My son never had a gun and explained to police that the landlord was lying. My son was arrested and charged with criminal possession of a weapon. My son never had a gun, no weapon was found but he was charged with criminal possession of a weapon just because someone said he had a gun.
This happens all the time. If a civilian is willing to swear out a complaint that he was menaced with a handgun the police have to make an arrest.

I going to guess your son was charged with one count of Menacing and one count of CPW 4th Degree. Both are misdemeanors.

If there are no witnesses to the alleged menacing, or the witnesses have ties to the landlord, I would hire an attorney and make the landlord tell his story to a jury.

And after your son is acquitted, I would go after the landlord with a vengeance he never anticipated....and I say this only because I am assuming your kid did not have a gun.

And if he did have a gun, I hope the next time he pulls it out on someone who has a bigger and faster gun.

http://assembly.state.ny.us/leg/?cl=82&a=68
 

Shay-Pari'e

Senior Member
conflix said:
This happens all the time. If a civilian is willing to swear out a complaint that he was menaced with a handgun the police have to make an arrest.

I going to guess your son was charged with one count of Menacing and one count of CPW 4th Degree. Both are misdemeanors.

If there are no witnesses to the alleged menacing, or the witnesses have ties to the landlord, I would hire an attorney and make the landlord tell his story to a jury.

And after your son is acquitted, I would go after the landlord with a vengeance he never anticipated....and I say this only because I am assuming your kid did not have a gun.

And if he did have a gun, I hope the next time he pulls it out on someone who has a bigger and faster gun.

http://assembly.state.ny.us/leg/?cl=82&a=68
A idiot with a crystal ball. Did we have a "WELCOME TROLL" night?

Who was watching the doors?
 
Last edited:

LawGirl10

Member
Posted by conflix:

"This happens all the time. If a civilian is willing to swear out a complaint that he was menaced with a handgun the police have to make an arrest."

HAVE to make an arrest? Give me a break.

Misinformation #3,427,856
 

conflix

Member
LawGirl10 said:
Posted by conflix:

"This happens all the time. If a civilian is willing to swear out a complaint that he was menaced with a handgun the police have to make an arrest."

HAVE to make an arrest? Give me a break.

Misinformation #3,427,856
Yes, in the City of New York, when a civilian reports a “crime” to the police and wants the perp arrested, the police MUST make an arrest. And if they do not make an arrest, and a complaint for misconduct is made against the officers, the officers could find themselves in the trial room, fighting to keep their job.

The NYS legislature empowers police officers to use discretion solely in investigations involving traffic infractions. In all other cases, except for “violations” of law (discon, harrassment ect.) the officer did not personally witness, if the complainant wants a person arrested, the police MUST make an arrest.

And to bolster my above assertions, I should point out that brinais2sweet’s son was in fact, arrested in the confines of NYC. :)

So obviously, contrary to your assertion that police have discretion, in this case, the police MUST make an arrest. No if, ands, or buts. That is how a modern day professional police organization operates.

In an effort to maintain accurate records, I would suggest you correct your misinformation meter. :)
 
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CdwJava

Senior Member
conflix said:
So obviously, contrary to your assertion that police have discretion, in this case, the police MUST make an arrest. No if, ands, or buts. That is how a modern day professional police organization operates.
Well, it's how NYC may operate, but it's not how the rest of the modern world works ... though it seems odd that an arrest MUST be made. I would be very interested to see the statute that requires an arrest.

I know in some states (particularly in the south) someone can go before a magistrate and "swear out a warrant" ... it seems to be similar to the citizen's arrest procedure, but doing so through a warrant. If this is how it works in New York state, then I can see how they can make the arrest for a misdemeanor not committed in their presence.

In CA the only time an arrest MUST be made (aside from a couple of statutes that include "Shall arrest" language) is when a citizen's arrest is made at the scene of an alleged offense ... but even then we have discretion as to whether to book, cite, or release at the scene.



- Carl
 

LawGirl10

Member
conflix said:
Yes, in the City of New York, when a civilian reports a “crime” to the police and wants the perp arrested, the police MUST make an arrest. And if they do not make an arrest, and a complaint for misconduct is made against the officers, the officers could find themselves in the trial room, fighting to keep their job.

The NYS legislature empowers police officers to use discretion solely in investigations involving traffic infractions. In all other cases, except for “violations” of law (discon, harrassment ect.) the officer did not personally witness, if the complainant wants a person arrested, the police MUST make an arrest.

And to bolster my above assertions, I should point out that brinais2sweet’s son was in fact, arrested in the confines of NYC. :)

So obviously, contrary to your assertion that police have discretion, in this case, the police MUST make an arrest. No if, ands, or buts. That is how a modern day professional police organization operates.

In an effort to maintain accurate records, I would suggest you correct your misinformation meter. :)
Misinformation meter stays the same. An arrest requires probable cause, in New York city and every other place in America. Just because a citizen made a complaint does not mean probable cause is present. If, however, you meant to imply that the thing reported is actually determined by the officer to be supported by probable cause, then I would agree with you. But let's not get so hopeful this early in the day.
 

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