Raymond Felton is not in the same boat as Plaxico

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 2^nd.  His wife’s attorney apparently brought a loaded Belgian pistol (alleged to be Felton’s) to the 20^th Precinct on West 82^nd 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 2^nd.

@COPYRIGHT 2014 BY STEVE KALLAS ALL RIGHTS RESERVED