Weapon Possession

December 29, 2011

Tennessee Woman Arrested for Possessing & “Checking” Loaded Firearm at Ground Zero: Analysis of NY PL 265.03 & Its Strict Enforcement

To do the “right thing” almost always takes courage. The path of least resistance it is not. In New York City, where gun crime seems to have been relatively rampant over the past year recently culminating in the tragic death of New York City Police Officer Peter Figoski, District Attorneys are frothing at the mouth with every new firearm arrest. While often time zealous prosecution is more than reasonable in gun and violent crime cases, other times law enforcement in New York City can’t see the forest from the trees. For the sake of Meredith Graves, a nurse from Tennessee who “checked” her legally owned handgun with the police at Ground Zero, let’s hope that Manhattan District Attorney Cyrus Vance, Jr. not only can see this recent gun possession arrest for what it truly is – an honest mistake about New York laws – but also ignores the general guidelines he and his office have imposed on weapon cases.

Before addressing the allegations against Ms. Graves, one must understand and have a grasp on New York’s criminal statutes involving the possession of firearms without a permit. According to New York Penal Law 265.03(3), you are guilty of Criminal Possession of a Weapon in the Second Degree (CPW 2) if and when you possess a loaded firearm (a pistol, revolver, handgun, etc.) that is both loaded and outside your home or place of business and you do so without a permit. There are two critical concepts or rules that apply to these cases. First, you need not possess any intent to use that firearm unlawfully or against another person. Second, case law establishes that “loaded,” in the eyes of the court, is far more liberal than its literal meaning. In fact, if the firearm is capable of being loaded and the ammunition is locked in a carrying case with your gun (but not physically in it), then that gun is considered loaded for prosecution purposes. One last, but unavoidable point. As a “C” violent felony, NY PL 265.03 is punishable by a mandatory minimum of three and one half years in prison for a person without absolutely no criminal history. Compounding matters, a judge could sentence a defendant to as many as fifteen years in custody.

November 21, 2011

A Conspiracy of One: Understanding the New York Crimes Against Alleged Manhattan Pipe Bomb Terrorist Jose Pimentel

by Jeremy Saland

In a fairly atypical prosecution by the Manhattan District Attorney’s Office, Cyrus Vance, Jr. and Company are spearheading a case in Manhattan Criminal Court against alleged “lone wolf” terrorist, Jose Pimentel. It is alleged that Pimentel was a step or two away from detonating a shrapnel filled pipe bomb somewhere in New York City in retaliation against the military’s success against certain Muslim extremists. Pimentel faces up to twenty-five years in state prison if convicted not of the terrorism related offense that has galvanized the media, but for possessing an explosive type weapon.

According to reports, The New York City Police Department had been watching Pimentel for sometime after they learned of his alleged terroristic desires. In fact, it appears that Pimentel was the subject of NYPD scrutiny for well north of a year or two. While the story behind the investigation and ultimate arrest of Pimentel is fascinating, this blog entry will not address that investigation. Instead, the focus of this article is dissecting the offenses for which a Grand Jury may indict the accused.

October 24, 2011

The Confluence of Robbery & Weapon Crimes in the New York Penal Law: Possessing and Displaying a Firearm During a Theft

by Jeremy Saland

As discussed previously on this blog site, Robbery, under NY Penal Law section 160.00, is defined as “forcible stealing.” Thus it differs from other theft crimes for which force is not an element. In this legal context, “forcible” means threatening or using physical force. The force element can be satisfied in any number of ways: from a simple threatening fist pump and pushing a victim repeatedly into a corner to waiving a box cutter and brandishing a weapon in the victim’s face. Of course, if an alleged thief brandishes a “firearm” [i.e. a gun; for specific legal definition see: NY Penal Law 265.00(2)] at a Robbery in the New York City area or Westchester County, the severity of the crime is heightened. Any experienced New York criminal attorney knows that prosecutors in New York are tougher on defendants who perpetrate felonies while carrying firearms, guns, pistols or any type of weapon. If you brandish a weapon in New York during a forcible theft (i.e, a “Robbery”) you will, at the very least, face charges of Robbery in the Second Degree (NY Penal Law Section 160.10) – a class C felony with a possible sentence ranging from three and one half to fifteen years in prison – and you may face charges of Robbery in the First Degree (NY Penal Law Section 160.15) – a class B felony punishable from five to twenty five years in state prison. These terms of imprisonment are for first time offenders.

A critical component with regards to carrying a firearm during a Robbery, is whether that gun is loaded. Under NY Penal Law 160.10(2)(b) if a robber “displays what appears to be…a firearm” then that alleged robber will be convicted of Robbery in the Second degree. On the other hand, a defendant can only be convicted of Robbery in the First Degree if that firearm was loaded and “a shot readily capable of producing death or other serious physical injury could be discharged” (NY Penal Law 160.15(4)). Therefore, if what appears to be a gun is brandished during a Robbery and the defendant is charged with Robbery in the First Degree, a New York criminal lawyer will always raise the affirmative defense that the gun was not loaded (or not a gun at all) and thus not a deadly weapon. If it can not be proven beyond a reasonable doubt that the firearm was indeed a loaded and deadly weapon, then the defendant may only be convicted of Robbery in the Second Degree. As noted above, this can mean significantly less time on a prison sentence especially when multiple counts/charges are levied against the defendant (as will almost always be the case).

April 25, 2011

New York Criminal Lawyer Weapon Crime Information Page: Defining Weapons Specified Pursuant to New York Penal Law 265.01(1) & Potential Defenses

by Jeremy Saland

New York weapon possession lawyers and New York City criminal defense attorneys often have to contend with a penal code that can be voluminous and complicated. In the realm of weapon crimes, one statute may contain five, six or many more subdivisions with specifically defined words that are directly relevant as to whether or not a crime has been committed. Specifically, New York Penal Law section 265.01(1) or CPW 4, is littered with these subdivisions and defined terms. The following blog entry will deal directly with what types of objects constitute a weapon and ultimately a crime in New York regardless of the manner in which that weapon or object was used (if at all). These laws apply to weapon crimes and charges regardless of whether you were arrested and processed or issued a Desk Appearance Ticket.

New York Penal Law 265.01(1) makes it a misdemeanor crime anywhere in New York to possess certain “automatic weapons.” That is, if you merely possess any of the following items (its is not an exclusive list) you are guilty of an “A” misdemeanor punishable by up to one year in jail. Obviously, there may be a defense that you have – was the recovery of the gravity knife or switchblade knife the result of an illegal search or is the alleged weapon not in fact what the police claim? But barring a defense and other means of mitigation, there are serious ramifications for your possession in terms of both your criminal record and your career.

March 31, 2011

New York Penal Law 265.01(1): The “Metal Knuckle” & Brass Knuckle Criminal Dilema

by Jeremy Saland

One of the most common weapon crimes prosecuted in New York City is the misdemeanor offense of Criminal Possession of a Weapon in the Fourth Degree. This crime, New York Penal Law 265.01(1), sets forth and establishes certain objects that are automatically considered weapons regardless of whether or not you had the intent to use that object unlawfully against another person. In other words, if you possess any of these specified weapons, including the infamous “metal knuckle,” the police in New York City can arrest you or issue you a Desk Appearance Ticket for innocently possessing the object. Compounding matters, guidelines at District Attorney’s Offices may not permit an offer for even a first time offender.

In the realm of weapons set forth under NY PL 265.01(1), the most frequent weapon crime or arrest prosecuted by Assistant District Attorneys in New York City is probably an offense related to a switchblade knife or gravity knife. Often times, an individual is arrested or given a Desk Appearance Ticket after an undercover police officer observes the knife clip on the outside of the pocket. Once they stop and frisk that person, police officers confirm the knife opens with the force of gravity or springs open (your New York criminal lawyer should confirm this). Having said that, other weapons are also vigorously prosecuted including the “metal knuckle.”

December 19, 2010

Making a Misdemeanor Assault in the Third Degree a Second Degree Felony in New York: When an Object Becomes a “Dangerous Instrument” & a Weapon

by Jeremy Saland

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be “bumped up” to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a “dangerous instrument.” As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as “dangerous instruments” where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a “deadly weapon” or a “dangerous instrument,” then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a “deadly weapon” or “dangerous instrument.”

November 29, 2010

Arrested for Possessing a Loaded Gun at JFK Airport (NY PL 265.03): New York Criminal Defense Lawyers Get Client Dismissal After Six Months

by Jeremy Saland

Saland Law PC, a New York criminal defense firm founded by two former Manhattan prosecutors, is pleased to announce our client received an Adjournment in Contemplation of Dismissal (ACD) after she was arrested for trying to check a firearm (gun, pistol, revolver, etc.) with a desk agent from JetBlue at New York’s John F. Kennedy Airport in Queens. This offense, Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), is a “C” violent felony punishable by up to fifteen years in prison and carries a mandatory minimum of three and one half years in prison.

Despite what many people think, properly registering a firearm and obtaining a concealed weapon permit in their home state does not give them the authority to do so in New York. Compounding matters, even if the gun is “broken down” in a hard sided case with the ammunition in a side compartment, New York law is clear. In substance, if the firearm is capable of being loaded it is, as a matter of law, loaded. What you may perceive as an empty weapon is in fact loaded.

November 3, 2010

Top New York Criminal Defense Results: Client Arrested with Possessing Gun, Drugs and Driving with a Suspended License Avoids Criminal Record

by Jeremy Saland

Although it sounded horrific on paper, the New York criminal defense lawyers at Saland Law PC arguably obtained the best result for a client charged with Criminal Possession of a Weapon (a .380 handgun), Criminal Possession of a Controlled Substance (cocaine), Unlawful Possession of Marijuana and Driving with a Suspended License. Despite the allegations, our client pleaded to the violation of Disorderly Conduct. This disposition avoided not only a criminal record, but jail or probation.

Our client, a resident of North Carolina, came to New York to visit family. Unaware of the laws here, the client brought a legally registered firearm from his home state into New York. When he was pulled over for an alleged traffic infraction, the police also found some marijuana and cocaine on his person in an amount consistent with personal use. Compounding matters, our client was driving on a suspended license for old tickets he was unaware about.

September 25, 2010

Arrested for a Loaded Firearm at a New York / Queens Airport: Criminal Possession of a Weapon in the Second Degree (265.03) & Your Criminal Defense

by Jeremy Saland

You thought you were doing all the right things, but you were arrested at an airport in New York (usually in Queens at either LaGuardia airport or John F. Kennedy – JFK – airport) for possessing a loaded firearm or gun. Your life just went from 0 to 60 mph in two seconds and you are now charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03). Often called CPW 2, possessing a loaded firearm, even without any malicious, “bad,” or criminal intent, is punishable by a mandatory 3.5 years in state prison if it is possessed outside your home and place of business. Sadly, you may have a permit in your home state, the firearm, gun, revolver or pistol may have been in a proper hard sided and locked case with the ammunition removed and you may have even attempted to check it with an agent at the counter. Unfortunately, New York law is clear. Possessing a loaded firearm outside your home or place of business in New York State without a permit in New York is a felony punishable by up to 15 years in prison. Compounding matters, you may have made the reasonable assumption that your gun or firearm was not loaded because you removed a clip, cartridge or ammunition from the firearm. However, because you stored those bullets in the same carrying case, New York law considers the firearm loaded.

In the event that you are arrested in Queens at one of the airports, you will be taken to central booking and to the Queens Courthouse. Make no mistake, your innocent error of believing it was “OK” to possess that gun in New York will be lost on the the Queens prosecutors at your arraignment. While they are merely doing their jobs, they will likely ask for bail. Whether you retain a New York criminal defense attorney experienced in weapon crimes such as NY PL 265.03 or you utilize a public defender, it is critical to convince the judge that little or no bail is necessary to ensure your return to court.

August 31, 2010

Criminal Defense of a Weapon Arrest: Defining “Firearm” as it Relates to New York Gun Crimes and New York Gun / Weapon Possession Laws

by Jeremy Saland

One of the more common violent crimes charged in New York is Criminal Possession of a Weapon pursuant to New York Penal Law sections 265.01, 265.02 and 265.03. While the lower level weapon crimes often relate to the possession of knives or similar instruments (gravity knives and switchblades), the more serious weapon crimes usually relate to the possession of a “firearm.” Obviously, because they do not reside here, many out-of-state residents who travel to New York are unfamiliar with the strict gun and weapon laws in New York City. Unbeknown to them, even bringing their duly licensed pistol, revolver or handgun from their home state into New York will result in an arrest for possession of that firearm. Sadly, gun owners who legally possess their weapons out of state are routinely arrested in New York City airports (Queens County) such as LaGuardia Airport or John F. Kennedy (JFK) Airport. What was an innocent mistake is now a serious felony punishable in most circumstance by a mandatory minimum of 3.5 years in state prison.

Just like other areas of law, New York weapon and gun laws have their own terms, definitions and legal decisions. In other words, while you might think your gun is not loaded because the ammunition is not in a magazine or cylinder of a gun, the gun is actually loaded in the eyes of New York law because the firearm is capable of being loaded. Another term that causes some confusion, but is critically important to understand, is what constitutes a “firearm” in New York.