Expert: Robert P. Firriolo - 2/23/2010

Question
QUESTION: I'm not sure if you've answered this question before, but here goes.
In NYC I pleaded guilty to a Felony back in 1994 for attempted burglary & possession of stolen property.I was sentenced to probation of 5 years which I earned an early dismissal. I then
moved out of state to CT to which the past 15-16 years I've been a good citizen with no arrests, I have 6 children & would like a a firearm of some sought to be in the home for protection.
I know my conviction cannot allow it , but why does my wife who's never been arrested for anything also be prohibited.
Is there anything that can be done so I can have protection for my family & home.
NY doesn't have expunge laws so I can't even try to expunge it.Any ideas??

Thank you.
Anthony.

ANSWER: First, you are incorrect that "NY doesn't have expunge laws." While a convicted felon may not possess firearms or ammunition unless his conviction is expunged or set aside, in New York his rights are restored via a relief from civil disabilities, or if he receives a pardon.

To restore firearm rights after a felony conviction in a New York State court, one needs to obtain a Certificate of Relief from Civil Disabilities (CRD) and, after a required waiting period, a Certificate of Good Conduct (CGC) from the sentencing court or the Parole Board.

Please refer to the following document for specific details, and note closely the contents of paragraph #15:

http://dpca.state.ny.us/pdfs/certificatesofrelieffromforfeituresanddisabilitiesq

Here is a link to the CRD application from the DCPA: http://www.dpca.state.ny.us/pdfs/dpca52.pdf

Here is a link to the CGC application and the instructions: https://parole.state.ny.us/documents/CertApplication.pdf

You can also contact the NYS Division of Probation and Correctional Alternatives for more information:

http://dpca.state.ny.us/contact.htm

Next, your wife is not prohibited from possessing firearms in her home, but you could be considered in "constructive possession" of those firearms and thus guilty of a federal felony under 18 USC § 922(g).

In US v. Mabry, 3 F.3d 244, 247 (8th Cir. 1993), police seized two unloaded shotguns from a second floor bedroom in Mabry's home. Although Mabry was not present during the search, he arrived shortly thereafter and admitted that the residence was his home. The Court of Appeals held that proof of constructive possession, that is, proof that the defendant "exercised ownership, dominion or control over the firearms or dominion over the premises," will support a § 922(g) conviction. In the absence of evidence refuting the normal inference of dominion, showing that a firearm was discovered at the defendant's residence suffices to prove constructive possession.

Mabry relied on his mother's testimony that the shotguns had belonged to Mabry's deceased grandfather and were kept in a room accessible only through her locked bedroom. However, her testimony was "quite contradictory, and there was other evidence that she sold PCP at the home in Mabry's absence, and that he had been seen carrying a .38 revolver at the home. Viewed in its entirety, the evidence was sufficient to permit the jury to find Mabry guilty of possessing the shotguns. In addition, the fact that the shotguns were old and unloaded and that no ammunition was discovered on the premises do not preclude a § 922(g) conviction."

Another instructive case is US v. Balanga, 109 F.3d 1299 (8th Cir. 1997). Balanga argued on appeal that there was insufficient evidence to support his conviction for being in possession of a .22 caliber rifle and ammunition found in his basement. Balanga argued that he did not possess a key to his basement door's padlock while another person stored a rifle and ammunition in Balanga's basement. Balanga admitted that he knew of the .22 caliber rifle and the ammunition that was stored in his basement, but argued that because he did not have a key to the basement, he did not have access to the rifle and the ammunition, and therefore did not possess them.

The court disagreed, finding that to convict Balanga of being a felon in possession of a firearm, the government had the burden of proving beyond a reasonable doubt that he "'exercised ownership, dominion or control over the firearms or dominion over the premises'" where the firearms were stored. The court ruled that, "In this case the jury could have reasonably concluded that Balanga failed to refute the normal inference of dominion over his own home. While there was some testimony at trial to support Balanga's assertion that he did not have a key to his own basement during the period in question, there was also evidence that Balanga in fact retained a key."

So, the mere presence of a firearm in the home of a convicted felon (where he has "dominion") will raise a presumption that he is in possession of it in violation of the law. The burden shifts to the prohibited person to prove in court that he had no access whatsoever to the firearm. From the cases, this appears to be a very heavy burden.

Even momentary or fleeting possession of firearm may constitute “possession” for purpose of this statute. See U.S. v. Mercado,  412 F.3d 243 (1st Cir. 2005).

Finally, note also that the wife who allows her convicted felon husband to possess the firearm is also guilty of a federal felony under 18 USC 922(d). Transfers of firearms to any prohibited persons is unlawful under federal law.


---------- FOLLOW-UP ----------

QUESTION: Thank you for such a quick response and for giving me some very crucial information.
First I will pursue the process you outlined with NY sate.I know that will be very slow, I already called & they told me the applications even get looked at is taking up to a year.
I had two more questions to what you said.
Do I have to deal with NY for my CRD & CGS since I'm a CT resident now, in other words do I have to get that in the state where my conviction was no matter where I live now?
If my spouse was to buy a Firearm & she stored it at another residence in which I had no key of entry, such has her mother's home or her own storage facility and bear in mind I have no key access to any of the these facility's & my name is not on her storage unit that contains her work equipment.


Thanks again for the previous answers.

ANSWER: 1) Yes, you have to deal with New York State. You can only get relief from your disability in the state where you were convicted. Connecticut cannot expunge a New York conviction; only New York can do that.

2) If the spouse of a convicted felon stores her firearms at some off-premises location where the convicted felon has no access, then the convicted felon would not have "constructive possession" over the firearms as long as he does not exert "dominion" over the location where the firearms are stored.

Just to further explain how the law works, the federal Gun Control Act regulates possession of firearms and ammunition, not their ownership (sometimes called "legal title"). A convicted felon could technically own (hold title to) firearms but he may not possess them. He may allow a museum to display them, store them off-premises with a relative, direct that they be donated to a charity, etc. But he may not possess them, or ship or transport them in interstate or foreign commerce.


---------- FOLLOW-UP ----------

QUESTION: I can't believe the information that I'm reading, you've been very helpful you've made all the legal mumbo jumbo that I was trying to read in the library much easier,quicker & understandable.
The only thing I'm confused about, would me buying a firearm still be against the law, cause If I could be the owner but not have possession It leaves me to spin a little.
I know I can go to a dealer & buy a car with no drivers license & lets say a chauffeur drive it for me with me being the owner but not the registrant.
Is the firearms laws different in that respect. I'm wondering how is it the Felon can be the title owner without possession.
Thanks again for the knowledge.If I had known back then that by having a felony conviction would bring so much pain I first would have never committed the crime. I really should have fought the case better & had it dropped to a misdemeanor.


Thanks a lot for all this info.
You & this site are priceless.

Answer
You would not be able to purchase a firearm now. As a practical matter, a convicted felon cannot purchase a firearm because he would be required to disclose his status to the dealer, who is required to deny the sale (or more precisely, the "transfer"). Even if the convicted felon lied on the 4473 (firearm transaction) form (which is itself a federal felony), the instant background check would likely flag the buyer as a felon and prevent the transaction.

So how could a felon be a firearm owner? Here are a couple of examples: 1) He could own firearms before his conviction, and then upon his conviction give them to somebody to hold until he got the conviction expunged or pardoned, or until his children became old enough to own them, or until he died, when lawful title passes by operation of a will, etc. 2) He could obtain legal title when somebody else dies and leaves it to him in a will; however, he may never take possession and would likely have to have the executor of the estate sell the firearms and give the felon the proceeds of the sale. There are doubtless other ways a convicted felon could obtain "paper title" to a gun (such as a private, intrastate sale on paper), but regardless of how the title is obtained, the gun will never be able to be legally transferred and the convicted felon will never be allowed to legally take possession.