TEMPORARY AND LAWFUL POSSESSION

(Revised May 2021 & Dec. 2023) 1

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
__________
 NOTE: The following should be added to the list
of elements of the pertinent offense:
and #. That the defendant’s possession was
not innocent.

1
This instruction, as it existed prior to May 2021, was approved in People v
Griggs, 108 AD3d 1062, 106 [4th Dept 2013] and People v Davis, 103 AD3d 810,
812 [2d Dept 2013].
In May 2021, the text of the instruction was revised to include factors considered
by the Court of Appeals in People v Williams, 36 NY3d 156 [2020], and to provide
further guidance in the endnotes. Prior to the revision the instruction on factors
read:
“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 weapon, the manner in which the weapon came into the defendant's
possession, the length of time the weapon remained in his/her
possession, whether the defendant had an intent to use the weapon
unlawfully or to safely dispose of it, the defendant's opportunity, if any, to
turn the weapon over to the police or other appropriate authority, and
whether and how the defendant disposed of the weapon.”

In December 2023, the instruction was amended primarily to account for the
Court of Appeals decision set forth in endnote (8).

2
Williams, 36 NY3d at 160-61. summarized the applicable law as follows:

This Court has long held that criminal possession of a weapon, as

proscribed by the Penal Law, should not be construed to mean a
possession . . . which might result temporarily and incidentally from the
performance of some lawful act. In order to trigger the right to a jury
charge concerning the defense of temporary and lawful possession, there
must be proof in the record showing a legal excuse for . . . possession as
well as facts tending to establish that, once possession has been
obtained, the weapon had not been used in a dangerous manner. In
accordance with those principles, the pattern jury charge relating to
temporary and lawful possession explains that [a] person has innocent
possession of a weapon when [that person] comes into possession of the
weapon in an excusable manner and maintains possession, or intends to
maintain possession, of the weapon only long enough to dispose of it
safely (CJI2d[NY] Temporary and Lawful Possession).
 In that regard, we have explained that [a] defendant may not be
guilty of unlawful possession if the jury finds that [the defendant] found the
weapon shortly before [the defendant’s] possession of it was discovered
and [the defendant] intended to turn it over to the authorities." We have
also indicated that temporary and lawful possession may result where a
defendant took [the firearm] from an assailant in the course of a fight" and
the circumstances do not otherwise evince an intent to maintain unlawful
possession of the weapon. In such scenarios, [t]he innocent nature of the
possession negates . . . the criminal act of possession. Ultimately,
whether the weapon is found fortuitously or obtained by disarming an
attacker, the underlying purpose of the charge is to foster a civic duty on
the part of citizens to surrender dangerous weapons to the police.
(citations and quotation marks omitted).

3
People v. Snyder, 73 NY2d 900, 901-02 [1989] [The defendants wrested a
loaded pistol from another person during a fight and made no effort thereafter to
safely dispose of the weapon, in particular to take it the State Police barracks that
was “around the corner” from where they took possession of the pistol]; People
v. Banks, 76 N.Y.2d 799 [1990] [while acquiring the weapon by disarming another
in a fight “could be deemed justified,” the defendant was not justified in
“conceal[ing] the weapon on his person and determine[ing] to transport it through
the streets and on the subway into [another borough] where he proposed to ‘throw
it down a sewer’ ”].

4
Williams at 163: “the law is clear that defendant may not avoid the criminal
[possession] charge by claiming that he possessed the weapon for his
protection.” (internal quotation marks omitted).

6
People v Peterson, 233 AD2d 533, 533-34 [2d Dept 1996] [the defense should
have been charged where the “defendant testified that he was confronted by the
victim who was holding a gun, and believing that he was about to be robbed he
grabbed the gun and fired three times in self-defense. He walked away in a state
of shock and was arrested minutes later after a brief chase].

7
See People v Ruiz, 39 N.Y.3d 981, 984 (2022). The defendant was not entitled
to a “temporary and lawful possession” instruction: “Inasmuch as defendant's
actions [after taking possession of a firearm] were reckless and dangerous.”

8
See People v Pereira, 220 AD2d 696, 697 [2d Dept 1995] [“after coming into
possession of a loaded pistol by disarming an assailant, the intoxicated defendant
wandered through the streets waving it in a threatening manner at passersby until
he was apprehended by the police. Such evidence is utterly at odds with a claim
of innocent possession”]; People v Snyder, 138 AD2d 115, 119 [3d Dept 1988],
affd, 73 NY2d 900 [1989] [“the unqualified right of possession following the act of
disarming another will end when the weapon is secured and the defendant has
had an opportunity to turn it over to lawful authorities. Retention beyond that point
will be justified only by an affirmative showing of intent to properly dispose of the
weapon and circumstances justifying the defendant's failure to do so promptly”].

9
People v Whitehead, 123 AD2d 895, 896 [2d Dept 1986] [“the court's charge
included the erroneous proposition that such a defense is established only where
the defendant had the intent to turn the subject weapon over to the lawful
authorities. . . . the defendant's intent to turn the subject weapon over to the lawful
authorities is not a necessary element of the defense of temporary and lawful
possession” (emphasis added)].

10
See People v Gonzalez, 262 AD2d 1061, 1061 [4th Dept 1999] [“here the jury
could have found that, after defendant disarmed another during the course of a
fight, he retained possession of the weapon despite the opportunity to turn it over
to lawful authorities”]; People v Roccaforte, 141 AD2d 775, 776 [2d Dept 1988]
[the “presence and visibility of police precincts along the route traveled by the
defendant was proper rebuttal evidence in that it circumstantially controverted the
proffered defense”].

11
See People v Whitehead, 123 AD2d 895, 896 [2d Dept 1986] [see note 9];
People v. Banks, 76 N.Y.2d 799 [1990] [while acquiring the weapon by disarming
another in a fight “could be deemed justified,” the defendant was not justified in
“conceal[ing] the weapon on his person and determine[ing] to transport it through
the streets and on the subway into [another borough] where he proposed to ‘throw
it down a sewer’ ”]; People v Craig, 117 AD3d 1485, 1486 [4th Dept 2014]
[“Defendant found a loaded gun in a park and took the gun with him when his
father drove him to his mother's house. A police officer found the gun concealed
in a bag of clothing after initiating a traffic stop of the vehicle operated by
defendant's father. Although defendant claimed that he intended to turn the gun
in at a church's gun buy back program, defendant's retention of the gun beyond
opportunities to hand it over to the police is “ ‘utterly at odds with any claim of
innocent possession’ ”; People v Rose, 2021 NY Slip Op 00577 (2d Dept 2021)
(the Court held that the proof established that the defendant had only temporary
and lawful possession when he recovered a firearm from an assailant; left the
scene with the firearm; unloaded and disposed of it in the trash (i.e. according to
the dissent: in a “basement incinerator in the hope” it would be taken away) and
it was never recovered).

12
People v Holes, 118 AD3d 1466, 1467 [4th Dept 2014] [a “defendant is not
required to prove that [his/her] 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 (CJI2d [NY] Temporary and Lawful Possession)”]; People v Sterling, 151
AD2d 522, 522 [2d Dept 1989] “[it would have been preferable for the trial court
to have specifically stated that the People were required to disprove this defense
beyond a reasonable doubt”].