PLAXICO STILL IN TROUBLE

                                Kallas Remarks by Steve Kallas

         

It wasn’t really anything earth-shattering when the New York Post reported on Monday that Manhattan District Attorney Robert Morgenthau stated that “We’ve always taken the position that he’s [Plaxico Burress] going to have to go to jail, whether by trial or by plea.”  As with Mayor Bloomberg’s “prosecute him to the fullest extent of the law” comments, however, the timing of it all is a little strange.  But when you look at the recent history of the now-tougher New York gun laws, nothing in here is surprising at all.

       

WHAT’S THE LAW?

        

Readers of this column (see Kallas Remarks, 11/30/08) have read this before, but the main and simple charge against Plaxico is criminal possession of a weapon in the second degree.  That law states:

               

“A person is guilty of criminal possession of a weapon in the second degree when

          … (3) such person possesses any loaded firearm.”

      

 There’s an exception for possession at your home or business that doesn’t apply to Burress, who carried a loaded firearm into a New York City nightclub and shot himself during Thanksgiving weekend last November. 

          

The problem, of course, unbeknown to Plaxico and most people at the time, is that, with a big push from Mayor Bloomberg, the gun laws were changed in 2006 to make the above law a Class C felony.  Previously, the exact same behavior was deemed a Class D felony and could often be pleaded down to a misdemeanor and little or no jail time.  To specifically stop that from happening, it was made a Class C felony (with a mandatory minimum three-and-a-half year jail sentence) with the Manhattan District Attorney’s office having a general policy that if it did allow a defendant to plead down, it would be to a Class D felony (with a mandatory minimum of two years jail time) and not to a misdemeanor.

                 

And therein lies the jail time problem for Burress.

                 

WHERE DOES THAT LEAVE PLAXICO TODAY?

                         

Well, despite all the legal wrangling, it pretty much leaves him where he’s been all along: staring at a minimum of two years in jail.  As was also recently discussed in this column (Kallas Remarks, 6/20/09), Plaxico’s Plan B was probably to try and play one more year for a big payday by putting off his trial until early next year.  But the big hurdle, what NFL commissioner Goodell would do in terms of a suspension, seems to have cooled that plan (as previously discussed in the prior column, it seems hard to believe that the NFL would let Plaxico play with this thing hanging over his head).

                          

While that may be unfair (is Burress innocent until proven guilty or vice-versa?), it seems very unlikely that Burress will be allowed to play this season.  With apparently no offers yet (the silence from NFL teams speaks volumes), you have to think that the word is out that the NFL won’t let him play this year.  But we’ll see what happens on that front.

                           

WHERE’S THE INDICTMENT?

                       

Well, you have to think that’s coming down the pike.  It’s relatively easy to indict someone and this is a pretty simple case (remember, no intent to hurt someone or anything like that is needed under this law – you commit the crime by simply possessing a loaded firearm).  It seems possible that top lawyer Ben Brafman was doing his best to resolve the case for Plaxico with a minimum amount of jail time – maybe one year or less.  But, again, due to the change in the law, it’s always seemed that Burress would have to do two years – the mandatory minimum if one pleads to a Class D felony (one step down from what he’s charged with).

                      

WHAT ABOUT ANTONIO PIERCE?

                              

Pierce, if he testifies truthfully in the grand jury about what he knew and saw (at some point, obviously, Pierce knew that Burress had a loaded firearm), would be off the hook for any potential (New York) charges.  While DA Morgenthau played it coy with the Post (“I’m not going to get into that” when the Post asked him whether Burress alone would face gun charges), this would seem to be the classic case of a person with much lesser involvement testifying as to what he knew and saw thus getting immunity (if he testifies truthfully). 

                           

It’s hard to believe that Antonio Pierce would potentially hurt his own career and not tell the truth, especially now that Plaxico is no longer a Giant.

                              

SO WHAT CAN BURRESS OR HIS LAWYER DO?

                             

It’s great that Ben Brafman is quoted in the Post as saying “Now that they [the DA’s office] have drawn a line in the sand, this is going to be a battle.”  But, right now, the battle appears to be one-sided.  While Brafman, at trial, will only have to convince one juror that Plaxico didn’t do the crime, that may be very difficult to accomplish.  But Burress does have the lawyer who got P Diddy off against all odds in his gun possession trial.  So maybe lightning can strike twice.

                            

But it says here that’s a real longshot.       

                        

© Copyright 2008 by Steve Kallas.  All rights reserved. 

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