Attempted Possession of an Inoperable Weapon in the Third Degree in New York
Is attempted possession of a weapon considered a cognizable crimein New York?
In People v. Saunders, 85 NY2d 339, 648 N.E.2d 1331, 624 N.Y.S.2d 568 (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 and 265.01, 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.
In that case, the Court of Appeals considered whether attempted possession of a weapon was a cognizable crime.
In Saunders, the defense argued that the specific intent required for an attempt is incompatible with the strict liability nature of the crime.
The Court rejected this argument stating that "the specific intent required to commit an attempt is not, under all circumstances, incompatible with recognizing penal responsibility for an attempt to commit a strict liability offense" (id. at 343 ).
The Court went on to emphasize that its analysis did not apply to "constructive, attributive possession circumstances" (id.).
And concluded that "while numerous, varied types of conduct by a criminal actor--intentional, knowing, nonintentional, implied, inferred and constructive--may qualify as an "awareness" necessary to constitute the "possession" defining the underlying crime, they may not all theoretically qualify for attempt prosecutions (id at 344, quoting Penal Law 15.00 2).