The following terms used in that definition have a special meaning: A FIREARM means any pistol or revolver.4 POSSESS means to have physical possession or otherwise to exercise dominion or control over tangible property.5 A person KNOWINGLY possesses a firearm when that person is aware that he or she is in possession of such a firearm.6 Under this count, the firearm need not be loaded but it must be operable. To be operable, a firearm must be capable of discharging ammunition. The defendant is required to know that he or she is in possession of a firearm, but the defendant is not required to know that the firearm was operable.7 Penal Law § 265.00 (3). That statutory definition of a “firearm” also 4 includes a or shotgun, and and “sawed-off” rifle an “assault weapon,” excludes an any one of those weapons is in issue, see “antique firearm.” If the the end of the of of "Additional Charges” section at “Table Contents” the charges for this article for the appropriate charge. Penal Law § 10.00 (8). Where constructive possession is alleged, 5 or where the People rely on a statutory presumption of possession, insert the appropriate instruction from the "Additional Charges" section at the end of the charges for this article. See Penal Law § 15.05 (2). For an expanded charge on the 6 definition of "knowingly," see Instructions of General Applicability, Culpable Mental States, Knowingly. Case law has added "operability" of a firearm as an element of the 7 crime (see 86 NY2d 851, 852 [1995]), but has further People v Longshore, held that there is no requirement that the possessor know the firearm was operable (see People v Parrilla, __NY3d__, 2016 NY Slip Op 03417 [2016] need only knowingly possess a firearm, they need not know [“Defendants that the firearm was loaded or People v Saunders, 85 NY2d operable”]; 339, 341-342 [1995]; People v Ansare, 96 AD2d 96, 97 [4th Dept 1983]).
The following terms used in that definition have a special meaning: A FIREARM means any pistol or revolver.4 POSSESS means to have physical possession or otherwise to exercise dominion or control over tangible property.5 A person KNOWINGLY possesses a firearm when that person is aware that he or she is in possession of such a firearm.6 Under this count, the firearm need not be loaded but it must be operable. To be operable, a firearm must be capable of discharging ammunition. The defendant is required to know that he or she is in possession of a firearm, but the defendant is not required to know that the firearm was operable.7 4 Penal Law § 265.00 (3). That statutory definition of a “firearm” also includes a “sawed-off” rifle or shotgun, and an “assault weapon,” and excludes an “antique firearm.” If any one of those weapons is in issue, see the "Additional Charges” section at the end of the “Table of Contents” of the charges for this article for the appropriate charge. 5 Penal Law § 10.00 (8). Where constructive possession is alleged, or where the People rely on a statutory presumption of possession, insert the appropriate instruction from the "Additional Charges" section at the end of the charges for this article. 6 See Penal Law § 15.05 (2). For an expanded charge on the definition of "knowingly," see Instructions of General Applicability, Culpable Mental States, Knowingly. 7 Case law has added "operability" of a firearm as an element of the crime (see People v Longshore, 86 NY2d 851, 852 [1995]), but has further held that there is no requirement that the possessor know the firearm was operable (see People v Parrilla, __NY3d__, 2016 NY Slip Op 03417 [2016] [“Defendants need only knowingly possess a firearm, they need not know that the firearm was loaded or operable”]; People v Saunders, 85 NY2d 339, 341-342 [1995]; People v Ansare, 96 AD2d 96, 97 [4th Dept 1983]).
265-02(5)(ii).docx