Hopefully this was raised at trial during a motion for directed verdict or there was some sort of testimony demonstrating the lack of knowledge. If not, then the prosecution is entitled to their presumptive jury instruction and the second prong of the Section is also satisfied.
The type of evidence that the District Attorney presented is known as testimonial evidence. Meaning, the only evidence offered (besides the alleged drugs and gun) was the oral statement of the officer. Notably absent was any laboratory testing demonstrating that in fact the substance found was actually the substance that falls within the statute and if it was a substance within the statute, that it met the weight requirement. Here there is no testimony that the ""42nd Street," which the trooper knows to be a brand of heroin sold in NY City, actually was heroin at all! Accordingly, this charge should be dismissed because the distric t attorney utterly failed to present each element of the crime beyond a reasonable doubt to the jury. A finding of guilt under 220.06(5) requires that the defendant knowingly and unlawfully possesses the controlled substance, and that the substance weighs 500mg or more. ...
More generally, a court can look to the words of the statute to determine the scope of the word "knowingly" in the statute. In this statute, the "knowingly" is used only in the context of the possession of the cocaine, and the weight of the cocaine is contained in a separate independent clause. The statute does not require, for example, that the defendant "knowingly and unlawfully possesses 500mg or more of heroin". Thus, 220.06(5) does not require that Harry know the actual weight of the heroin in his bag, only that he knew he was in possession of heroin. There is no question that Harry knew he possessed heroin because it was his foot covering it up in the back seat of the car. Accordingly, there should be no presumptive charge against Tom and Dick but there may be one against Harry. As a quick aside, hopefully defense counsel would have requested separate trials for the defendants (although the likelihood of getting it is rather small).
Guns are small and for the most part easily hidden in cars. In most New York gun cases, if the gun is located by a police officer somewhere inside a car, all of the passengers in the car are likely to raise their hands in the air and say "Not mine!". In these circumstances it has been difficult for the government to obtain a conviction which resulted in a change of the legislation. This is where the burdens of presumption come in. Basically, thanks to the presumptions, all the government has to prove is that an operable gun was in the car and that the defendants were in the car at the same time. Here, interestingly, the gun was not actually found in the car. Rather, it was found once the men removed their belongings from the car. Indeed, according to the