For now, Giants receiver Plaxico Burress hasn’t been charged for reckless endangerment or any other crime relating to the discharge of a handgun in a public place.  Instead, Burress faces two counts under Section 265.03 of the New York Penal Law.

According to documents obtained and posted by The Smoking Gun (the name of the site was arguably never more appropriate), Burress faces one count under Section 265.03(1)(b) and another count under Section 265.03(3).

Section 265.03(1)(b) makes it illegal for a person to possess a loaded firearm “with intent to use the same unlawfully against another.”  Section 265.03(3) removes the “intent” requirement, and generally prohibits possession of a loaded firearm outside of a person’s home or place of business.

The first charge will be difficult to establish, since it will require proof beyond a reasonable doubt that Burress intended to use the gun unlawfully against someone else.  Burress would say that he intended to use it only in legal and proper self-defense.  The second charge will be much easier for the prosecution to prove.

So why add the initial charge?  In our view, it’s possible a clever tactic for compelling Burress to take the witness stand in his own defense, since the only way that he can comfortably prove that he had no intent to use the weapon unlawfully against another person would be to explain to the jury why he had the gun in his pants.

Either charge constitutes a Class C felony, punishable by a minimum jail term of 3.5 years.

The paperwork charging Burress also sets forth specific facts regarding the incident that resulted in the prosecution.  Prior reports had conflicted in this regard. 

Burress, per an unnamed informant, was holding a drink in his left hand and fidgeting with his right hand in the area of his waistline while entering the VIP area at the Latin Quarter night club. 

The informant then heard a “pop,” and Burress essentially said, “Take me to a hospital.”

The informant then say Burress’ legs begin to shake and, as they were shaking, a gun fell out of Burress’ pants and struck the ground. 

Burress is lucky the gun didn’t go off again when it hit the floor. 

And, depending on where the barrel was pointing when the gun landed, so is the informant.