By
Steve Kallas (posted by Rick Morris)
By
now, you know that New York Knicks point guard Raymond Felton was arrested and
arraigned yesterday (Tuesday) in state criminal court in lower Manhattan. Felton is charged with two felonies: 1)
Criminal possession of a weapon in the third degree (a Class D felony); and 2)
Criminal possession of a firearm (a lesser Class E felony).
Felton
was released on $25,000 bail, was told to stay away from his soon-to-be ex-wife
(via order of protection for six months) and was told to return to court on
June 2nd. His wife’s attorney
apparently brought a loaded Belgian pistol (alleged to be Felton’s) to the 20th
Precinct on West 82nd Street just before the Mavericks-Knicks game
(another terrible Knick loss) on Monday and Felton surrendered to the police a
few hours after the game.
WHAT
IS VERY IMPORTANT IS WHAT FELTON WAS NOT CHARGED WITH
When
the story broke and Felton turned himself in to police, he was initially
charged with, among other things, Criminal possession of a weapon in the second
degreek, a Class C felony, and a more serious charge than
what he would later be charged with when he was arraigned some 18 hours later.
Not
being charged with a Class C felony is very helpful to Felton. But what happened? Why the change?
Excellent
New
York criminal defense lawyer and former Bronx Assistant District
Attorney Joseph Heinzmann explains:
“When police arrest an individual,
they suggest charges to the prosecutor. Though the police suggested second degree
possession, the facts as reported do not support
that charge as a matter of law.
The prosecutor filed charges that fit
the facts as alleged. For second degree possession to be appropriate,
there are significant facts that would need to be proved beyond a
reasonable doubt for there to be a conviction on that charge. Based on what has been reported to this point, there is no possibility
prosecutors could make a case for second degree possession, which is
likely why they declined to file that charge.”
And
that’s great news, in a bad situation, for Raymond Felton.
WHY
IS THAT GREAT FOR FELTON?
Well,
the reason that Plaxico Burress went to jail (whatever you think of his case)
is because he was charged with a Class C felony. The New York County DA’s office would only
allow someone to plead down a Class C felony to a Class D felony, which still
required, as you will recall, two years imprisonment (for more on this, see
Kallas Remarks, 11/30/08).
That’s
why Plaxico was imprisoned. And there is
at least a chance that Felton won’t be since no Class C felony was charged at
his arraignment.
There
are a number of differences between the Plaxico case and the Felton case. Plaxico committed the crime by bringing an
unlicensed gun into New York City in his waistband and
accidentally shot himself.
In
Felton’s case, the unlicensed gun was in his apartment (where his estranged
wife is living). Although not licensed
or registered in New York and although it was full of ammunition (hence the
lesser Criminal possession in the third degree charge), it will have to be
proven that it was his gun (as of now – Wednesday afternoon – this writer has
heard only one report that says that Felton purchased the gun in South
Carolina).
So
the Plaxico case and the Felton case, although they both have New York City athletes who have been
charged with gun offenses, are really apples and oranges.
WILL
RAYMOND FELTON DO TIME?
A
fascinating question. While it was
pretty clear, back when Plaxico got into trouble, that he was going to do some
time (three-and-a-half years if he went to trial and lost under the Class C
felony charge and two years if he would plead (he eventually did) to the lesser
Class D felony charge), the Felton case is in a different and lower category.
Once
you get to being charged with a Class D felony (Criminal possession of a weapon
in the third degree) and an even lesser Class E felony (Criminal possession of
a firearm), you at least have a chance to engage in plea negotiations to either
avoid being imprisoned or at least keeping that term of imprisonment to less
than Plaxico got and maybe even less than a year.
So,
while there may be a fine and some kind of community service and maybe (his
best possible outcome) probation, if he does have to do some time, it says here
that any term of imprisonment will be less than Plaxico’s two-year sentence.
And
this is true, in this writer’s opinion, even when you read (correctly) that the
Class D felony could be punishable up to seven years and the Class E felony
could be punishable up to four years.
All of this assumes that Raymond Felton has no prior criminal record, which
has been reported on at least one New York City newscast.
CAN
FELTON PLAY NOW?
The
answer to that question, from a legal perspective, is yes. He’s met bail and can go to Miami and play tomorrow
night. The NBA’s collective bargaining
agreement does not allow the team or the NBA to do anything with respect to a
player suspension simply because he was arrested and charged, as is the case
here.
Remember,
Raymond Felton is innocent until proven guilty.
He
is scheduled to be back in court on June 2nd.
@COPYRIGHT
2014 BY STEVE KALLAS ALL RIGHTS RESERVED
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