green
Positive treatment
Issue: rejection claimNY ↗
Issue: temporary and lawful possession instructionNY ↗
Issue: tendered defenseNY ↗
42.6 score
G Cite
cited 4× by 3 distinct cases, 2017–2024 ·
…utterly at odds with any claim of innocent possession
at p. 801
✓
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990
2008
2026
Top citers, strongest first. 47 distinct citers.
How cited ↗
examined
Cited as authority (rule)
People v. Ramirez
(4×)
Defendant did not transport the weapon through the streets or the subway ( People v Banks , 76 NY2d 799, 801 [1990]), or point it at anyone in a threatening manner ( People v Pereira , 220 AD2d 696 [2d Dept 1995], lv denied 87 NY2d 1023 [1996]), or hide it for the purpose of retrieving it at a later time ( Pemberton, 144 AD2d at 223 ), or fire it ( People v Ruiz , 39 NY3d 981 , 983-984 [2022]; Williams , 36 NY3d at 158; Williams , 50 NY2d at 1043 ; People v Curry , 85 AD3d 1209, 1211 [3d Dept 2011], lv denied 17 NY3d 815 [2011]), or otherwise attempt to use it in a manner that placed others at…
discussed
Cited as authority (rule)
The People v. Anthony Debellis
Similarly, in People v Banks ( 76 NY2d 799, 801 [1990]), we held that the defendant’s decision after coming into possession of the firearm to transport it on the subway to a different borough, where he stated that he intended to dispose of it by throwing it down the sewer, was “utterly at odds with any claim of innocent possession.” -7- -8- No. 27 testified that he possessed the weapon unlawfully for over a year before deciding to surrender it voluntarily.
discussed
Cited as authority (rule)
The People v. Rebecca Ruiz
Viewing the evidence adduced at trial in the light most favorable to defendant, as we must (see People v Banks, 76 NY2d 799, 800 [1990]), we conclude that “‘no reasonable view of the evidence would support a finding of the tendered defense’” of temporary and -4- -5- No. 100 lawful possession and, thus, County Court was “‘under no obligation to submit the question to the jury’” (People v Williams, 36 NY3d 156 , 160 [2020], quoting People v Watts, 57 NY2d 299, 301 [1982]).
discussed
Cited as authority (rule)
People v. Ruiz
To establish entitlement to a charge for temporary and lawful possession of a firearm, " 'there must be proof in the record showing a legal excuse for having the [firearm] in [one's] possession as well as facts tending to establish that, once possession [was] obtained, the [firearm was not] used in a dangerous manner' " ( People v Banks , 76 NY2d 799, 801 [1990], quoting People v Williams , 50 NY2d 1043 , 1045 [1980]; see People v Williams , 36 NY3d 156 , 161 [2020]; People v Graham , 148 AD3d 1517, 1518 [4th Dept 2017]).
discussed
Cited as authority (rule)
People v. Cook
In any event, such a charge was not warranted because even when viewing the evidence in the light most favorable to [*2]the defendant, the defendant's conduct after he gained possession of the gun was "utterly at odds with any claim of innocent possession" ( People v Banks , 76 NY2d 799, 801 [internal quotation marks omitted]; see People v Snyder , 73 NY2d 900, 902 ).
cited
Cited as authority (rule)
People v. Jackson
There was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge ( see People v Banks , 76 NY2d 799, 801 [1990]; People v Snyder , 73 NY3d 900 [1989]).
cited
Cited as authority (rule)
People v. Jackson
There was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge ( see People v Banks , 76 NY2d 799, 801 [1990]; People v Snyder , 73 NY3d 900 [1989]).
examined
Cited as authority (rule)
The People v. Lance Williams
(3×)
also: Cited "see"
However, we have held that a defendant is entitled to a temporary and lawful possession instruction only if “there . . . [is] proof in the record showing . . . that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v Banks, 76 NY2d 799, 801 [1990] [internal citation omitted]).
discussed
Cited as authority (rule)
People v. Mack
In order for a defendant to be entitled to a charge of temporary and lawful possession, "'there must be proof in the record showing a legal excuse for [the defendant] having the weapon in [his or her] possession as well as facts tending to establish that, once possession has been obtained, the weapon [was not] used in a dangerous manner'" ( People v Banks , 76 NY2d 799, 801 [1990], quoting People v Williams , 50 NY2d 1043, 1045 [1980]; see People v Ellington , 160 AD3d 1484 , 1485 [2018], lv denied 31 NY3d 1147 [2018]).
discussed
Cited as authority (rule)
People v. Ellington
In order to establish entitlement to such a charge, " there must be proof in the record showing a legal excuse for having the weapon in [one's] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner' " ( People v Banks , 76 NY2d 799, 801 [1990], quoting People v Williams , 50 NY2d 1043 , 1045 [1980]; see People v Holes , 118 AD3d 1466 , 1467 [4th Dept 2014]).
examined
Cited as authority (rule)
People v. Reel
(3×)
Contrary to the defendant’s contention, the Supreme Court properly denied the defendant’s request to charge the jury with the defense of temporary and lawful possession. “ ‘[T]o trigger the right [to a charge of temporary and lawful possession] there must be proof in the record showing a legal excuse for having the weapon in [the defendant’s] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner’ ” (People v Banks, 76 NY2d 799, 801 [1990], quoting People v Williams, 50 NY2d 1043, 1045 [1980]).
discussed
Cited as authority (rule)
People v. Sackey-El
To warrant a jury instruction on the defense of temporary and lawful possession, “there must be proof in the record showing a legal excuse for [the defendant’s possession oí] the weapon ... as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v Banks, 76 NY2d 799, 801 [1990]; see People v Williams, 50 NY2d 1043 [1980]; People v Madore, 145 AD3d 1440, 1442 [2016]; People v Curry, 85 AD3d 1209, 1211 [2011]).
discussed
Cited as authority (rule)
People v. Holmes
To warrant a jury instruction on that defense, “there must be proof in the record showing a legal excuse for having the weapon in [defendant’s] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v Banks, 76 NY2d 799, 801 [1990] [internal quotation marks omitted]).
discussed
Cited as authority (rule)
People v. Holmes
To warrant a jury instruction on that defense, “there must be proof in the record showing a legal excuse for having the weapon in [defendant’s] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v Banks, 76 NY2d 799, 801 [1990] [internal quotation marks omitted]).
discussed
Cited as authority (rule)
HOLMES, CARL J., PEOPLE v
To warrant a jury instruction on that defense, “there must be proof in the record showing a legal excuse for having the weapon in [defendant’s] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v Banks, 76 NY2d 799, 801 [internal quotation marks omitted]).
discussed
Cited as authority (rule)
People v. Duggins
Defendant further admitted to concealing the loaded handgun at issue when the vehicle in which he was traveling was stopped by police, thus negating any potential temporary innocent possession defense (see People v Banks, 76 NY2d 799, 801 [1990]; People v Curry, 85 AD3d 1209, 1211 [2011], lv denied 17 NY3d 815 [2011]).
discussed
Cited as authority (rule)
People v. Duggins
Defendant further admitted to concealing the loaded handgun at issue when the vehicle in which he was traveling was stopped by police, thus negating any potential temporary innocent possession defense (see People v Banks, 76 NY2d 799, 801 [1990]; People v Curry, 85 AD3d 1209, 1211 [2011], lv denied 17 NY3d 815 [2011]).
discussed
Cited as authority (rule)
People v. Adams
Contrary to defendant’s contention, he was not denied effective assistance of counsel based on defense counsel’s failure to request that charge, inasmuch as the conduct of defendant was inconsistent with his claim of temporary lawful possession (see People v Banks, 76 NY2d 799, 801 [1990]; People v Smith, 63 AD3d 1655 [2009], lv denied 13 NY3d 839 [2009]; see generally People v Caban, 5 NY3d 143, 152 [2005]).
discussed
Cited as authority (rule)
People v. Robinson
Viewing the evidence in the light most favorable to defendant (see People v Caldarola, 45 AD3d 600 [2007], lv denied 10 NY3d 957 [2008]), we conclude that, although there is a reasonable view of the evidence upon which the jury could have found that defendant had a lawful basis for his initial possession of the firearm, there is no reasonable view of the evidence upon which the jury could have found that defendant’s use of the firearm thereafter was lawful (see generally People v Banks, 76 NY2d 799, 801 [1990]; People v Williams, 50 NY2d 1043, 1045 [1980]).
discussed
Cited as authority (rule)
People v. Zona
(2×)
Viewing the evidence in the light most favorable to defendant (see People v Banks, 76 NY2d 799, 800 [1990]; People v Cunningham, 12 AD3d 1131, 1132 [2004], lv denied 4 NY3d 829 , 5 NY3d 761 [2005]), we conclude that there is a reasonable view of the evidence that would enable a jury to find that defendant, a Seneca County Deputy Sheriff, took the allegedly stolen property from the surplus property warehouse of the Seneca County Sheriffs Department under a claim of right (see People v Baroody, 59 AD3d 111 [2009]; People v Ace, 51 AD3d 1379 [2008], lv denied 11 NY3d 733 [2008]).
discussed
Cited as authority (rule)
People v. Baroody
Viewing the evidence in the light most favorable to defendant (see People v Banks, 76 NY2d 799, 800 [1990]; People v Ace, 51 AD3d 1379, 1380 [2008], lv denied 11 NY3d 733 [2008]), we conclude that the claim of right charge was warranted because there is a reasonable view of the evidence to support a finding that defendant took possession of the tires under a claim of right (see Ace, 51 AD3d at 1380 ; cf. People v Cunningham, 12 AD3d 1131, 1132 [2004], lv denied 5 NY3d 761 [2005]).
discussed
Cited as authority (rule)
People v. Hayes
The trial court correctly declined to provide the jury with a charge regarding the temporary, innocent, and lawful possession of a weapon, as there was no reasonable view of the evidence that the defendant had a legal excuse for possessing the weapon and that the weapon had not been used in a dangerous manner (see People v Banks, 76 NY2d 799, 801 [1990]; People v Snyder, 73 NY2d 900, 902 [1989]; People v Williams, 50 NY2d 1043, 1044-1045 [1980]; People v Caldarola, 45 AD3d 600, 600-601 [2007]; People v Medina, 237 AD2d 382, 382-383 [1997]).
discussed
Cited as authority (rule)
People v. Ace
Viewing the evidence in the light most favorable to defendant, as we must (see People v Banks, 76 NY2d 799, 800 [1990]; People v Cunningham, 12 AD3d 1131, 1132 [2004], lv denied 4 NY3d 829 , 5 NY3d 761 [2005]), we conclude that there is a reasonable view of the evidence that would enable a jury to find that defendant took the rails under a claim of right (see generally People v Moscato, 251 AD2d 352, 352-353 [1998]; People v Ricchiuti, 93 AD2d 842, 844 [1983]).
discussed
Cited as authority (rule)
People v. Aracil
Although her initial acquisition of the weapon could be deemed justified, her subsequent act, which introduced a loaded firearm into a volatile situation, was “utterly at odds with any claim of in nocent possession . . . temporarily resulting from disarming a wrongful possessor” (see People v Banks, 76 NY2d 799, 801 [1990] [internal quotation marks and citations omitted]).
discussed
Cited as authority (rule)
People v. Caldarola
Thus, the charge was not warranted (see People v Banks, 76 NY2d 799, 800 [1990]; People v Williams, 50 NY2d 1043, 1044-1045 [1980]; People v Johnson, 30 AD3d 439 [2006]; People v Cruz, 13 AD3d 390 [2004]; People v Silas, 308 AD2d 465, 466 [2003]; People v Way, 304 AD2d 844, 844-845 [2003]; People v Hawkins, 258 AD2d 472 [1999]; People v Medina, 237 AD2d 382, 382-383 [1997]).
discussed
Cited as authority (rule)
People v. Pardner
Assuming, arguendo, that the defense of temporary innocent possession is applicable to cases involving possession of a controlled substance (see generally Public Health Law § 3305 [1]; People v E.C., 195 Misc 2d 680, 683-686 [2003]), we conclude that there is no reasonable view of the evidence that supports the inference that defendant’s possession of the cocaine was innocent (see People v Banks, 76 NY2d 799, 801 [1990]; People v Snyder, 73 NY2d 900, 901-902 [1989]; People v Williams, 50 NY2d 1043, 1044-1045 [1980]; People v Hightower, 237 AD2d 166 [1997], lv denied 89 NY2d 1094 [1997]). �…
discussed
Cited as authority (rule)
People v. Britton
Such a charge is appropriate only where the evidence indicates that the act of possession is of an innocent nature and there is no use of the weapon in a dangerous manner (see People v Banks, 76 NY2d 799, 801 [1990]).
discussed
Cited as authority (rule)
People v. Reid
The court properly refused to charge temporary lawful possession of a weapon since there was no reasonable view of the evidence, viewed most favorably to defendant, that he acquired the weapon by disarming someone or by any other lawful means, or that he intended to dispose of it in a lawful manner (see People v Banks, 76 NY2d 799, 801 [1990]; People v Snyder, 73 NY2d 900, 902 [1989]).
discussed
Cited as authority (rule)
People v. Cunningham
Viewed in the light most favorable to defendant (see People v Banks, 76 NY2d 799, 800 [1990]), there is no reasonable view of the evidence that defendant was a partner rather than an employee of Peter Morat or that the money allegedly stolen by defendant was possessed under a claim of right by defendant (cf. People v Moscato, 251 AD2d 352, 352-353 [1998]).
discussed
Cited "see"
People v. Ewers
In any event, the defendant would not have been entitled to a jury instruction on the defense of temporary and lawful possession of a weapon, "as there was no reasonable view of the evidence that the defendant had a legal excuse for possessing the weapon, and that the weapon had not been used in a dangerous manner" ( People v Pena , 100 AD3d at 1024 ; see People v Banks , 76 NY2d 799, 801 ; People v Snyder , 73 NY2d 900, 901-902 ; cf. People v Sackey-El , 149 AD3d 1104, 1106 ).
discussed
Cited "see"
People v. Smith
Although the unlicensed possession of a gun may not always constitute criminal conduct based upon "the innocent nature of the possession" and the People have the burden to prove, beyond a reasonable doubt, that defendant knowingly possessed the weapon and that such possession was not innocent ( People v Almodovar , 62 NY2d 126, 130 [1984]; see People v Holes , 118 AD3d 1466 , 1467 [2014]), "there must be proof in the record showing a legal excuse for [the defendant] having the weapon in his [or her] possession" ( People v Williams , 50 NY2d 1043, 1045 [1980]; see People v Banks , 76 NY2d 799, …
discussed
Cited "see"
GRAHAM, CLIFFORD, PEOPLE v
In order for a defendant to be entitled to such an instruction, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was -2- 4 KA 15-01692 not] used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 ; see People v Banks, 76 NY2d 799, 801 ).
discussed
Cited "see"
People v. Graham
In order for a defendant to be entitled to such an instruction, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801 [1990]).
discussed
Cited "see"
People v. Graham
In order for a defendant to be entitled to such an instruction, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801 [1990]).
discussed
Cited "see"
People v. Holes
For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801 [1990]).
discussed
Cited "see"
HOLES, CYNTHIA, PEOPLE v
For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 ; see People v Banks, 76 NY2d 799, 801 ).
discussed
Cited "see"
People v. Holes
For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801 [1990]).
discussed
Cited "see"
People v. Hawkins
“Such conduct is ‘utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor’ ” (Bailey, 111 AD3d at 1311 ; see People v Banks, 76 NY2d 799, 801 [1990]; People v Gonzalez, 262 AD2d 1061, 1062 [1999], lv denied 93 NY2d 1018 [1999]).
discussed
Cited "see"
People v. Hawkins
“Such conduct is ‘utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor’ ” (Bailey, 111 AD3d at 1311 ; see People v Banks, 76 NY2d 799, 801 [1990]; People v Gonzalez, 262 AD2d 1061, 1062 [1999], lv denied 93 NY2d 1018 [1999]).
discussed
Cited "see"
HAWKINS, LAWRENCE, PEOPLE v
“Such conduct is ‘utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor’ ” (Bailey, 111 AD3d at 1311 ; see People v Banks, 76 NY2d 799, 801 ; People v Gonzalez, 262 AD2d 1061, 1062 , lv denied 93 NY2d 1018 ).
discussed
Cited "see"
BAILEY, II, AUBREY D., PEOPLE v
Such conduct is “utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor” (Gonzalez, 262 AD2d at 1062 [internal quotation marks omitted]; see People v Banks, 76 NY2d 799, 801 [1990]; People v Aracil, 45 AD3d 401 , 401-402 [2007], lv denied 9 NY3d 1030 [2008]).
discussed
Cited "see"
People v. Curry
Temporary and lawful possession may be established where there is “a legal excuse for having the weapon ... as well as facts tending to establish that, once possession has been obtained, the weapon ha[s] not been used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801 [1990]).
discussed
Cited "see"
People v. Dickson
Where a defendant has been charged with the illegal possession of a weapon, the trial court is obligated to instruct the jury that it must acquit the defendant if the evidence at trial establishes that the defendant had “a legal excuse for having the weapon in his [or her] possession” and that “once possession ha[d] been obtained, the weapon ha[d] not been used in a dangerous manner” (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 799 [1990]).
discussed
Cited "see, e.g."
People v. Rossi
In any event, contrary to the defendant’s contention, the People adduced evidence disproving, beyond a reasonable doubt, the defense of temporary lawful possession of a weapon (see People v Sooknanan, 92 AD3d 810 [2012]; People v Sheehan, 41 AD3d 335 [2007]; see also People v Banks, 76 NY2d 799 [1990]; People v Hughes, 289 AD2d 186 [2001]).
discussed
Cited "see, e.g."
People v. Rossi
In any event, contrary to the defendant’s contention, the People adduced evidence disproving, beyond a reasonable doubt, the defense of temporary lawful possession of a weapon (see People v Sooknanan, 92 AD3d 810 [2012]; People v Sheehan, 41 AD3d 335 [2007]; see also People v Banks, 76 NY2d 799 [1990]; People v Hughes, 289 AD2d 186 [2001]).
discussed
Cited "see, e.g."
People v. Sheehan
Defendant’s conduct in fleeing upon the approach of the police and then depositing the weapon in a garbage can was “utterly at odds with any claim of innocent possession” (People v Williams, 50 NY2d 1043, 1045 [1980]; see also People v Banks, 76 NY2d 799 [1990]; People v Snyder, 73 NY2d 900, 902 [1989]; People v Hughes, 289 AD2d 186 [2001], lv denied 98 NY2d 638 [2002]).
discussed
Cited "see, e.g."
People v. Patterson
(People v La Pella, 272 NY 81 ; see also, People v Banks, 76 NY2d 799 ; People v Williams, 50 NY2d 1043 .) Thus, a reasonable view of the evidence in a light most favorable to the accused supports a charge of temporary and lawful possession.
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Earl Banks
v.
Earl Banks
APPEARANCES OF COUNSEL, Robert M. Morgenthau, District Attorney (James M. McGuire of counsel), for appellant., Lawrence A. Vogelman for respondent.
Cited by 87 opinions | Published
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings pursuant to CPL 470.40 (2) (b).
Even when viewed in the light most favorable to the defendant (People v Steele, 26 NY2d 526), there is no reasonable view of the trial evidence upon which the jury could have found defendant’s possession of a loaded .38 calibre automatic pistol to be innocent and lawful. Accordingly, the trial court properly denied defendant’s request for a charge on the defense of temporary and lawful possession.
Although the People sought to prove that the police recovered the gun from a brown paper bag in defendant’s- pants pocket after he and his codefendant Carson Love had committed a robbery, the defendant testified that he acquired the gun by disarming another in a fight. According to defendant, when he accompanied Love to a park in Manhattan to conduct a marihuana transaction with one Freddie Benes, Love and Benes began to fight. When somebody yelled that Benes was going to get something, defendant grabbed Benes’ arm and picked up a paper bag from the ground before Benes could grab it. Defendant felt the shape of a gun in the bag, put the bag in his pants pocket and as they left the park defendant told Love about the gun. Although defendant claimed that he did not throw the gun away in the park because he was afraid someone there would use it against him, he told Love that he intended to take it to Queens and testified at trial that he intended to throw the gun down a sewer in Queens.
[*801] While it is settled that the mere possession of a weapon is not criminal in every instance, we have said that "to trigger the right [to a charge of temporary and lawful possession] there must be proof in the record showing a legal excuse for having the weapon in [defendant’s] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner”. (People v Williams, 50 NY2d 1043, 1045.) Here, after initially acquiring the weapon by "taking” it from Benes under circumstances that could be deemed justified, defendant concealed the weapon on his person and determined to transport it through the streets and on the subway into Queens where he proposed to "throw it down a sewer.” This evidence was " 'utterly at odds with any claim of innocent possession’ ” (People v Snyder, 73 NY2d 900, 902, quoting People v Williams, 50 NY2d, at 1045, supra) temporarily resulting from disarming a wrongful possessor (People v Persce, 204 NY 397, 402).
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.