Weapon Possession

June 17, 2010

DA Vance, Jr Announces $1.9 Million Settlement with Distributors of Illegal Knives in New York

Manhattan District Attorney Cyrus Vance, Jr. is trying to be more proactive when it comes to crimes involving knives. Last year, In Manhattan alone, there were 2,269 arrests involving the possession of illegal knives. Mere possession of certain weapons such as “gravity knives” and “switchblades” is punishable as an “A” misdemeanor pursuant to New York Penal Law 265.01 – Criminal Possession of a Weapon on the Fourth Degree.

According to the District Attorney’s website, DA Vance, Jr. has reached an agreement with national and local retailers of knives that are illegal in New York. Retailers, such as Home Depot, Eastern Mountain Sports, Paragon Sports, and four others, will enter into deferred prosecution agreements. The law permits these companies, like individuals, to be prosecuted for crimes – a fact recently addressed by DA Vance in an earlier press release. In return, these companies will provide the Manhattan District Attorney’s Office the past four year’s profit. In total, that amount is approximately $1.9 million. Additionally, the companies will finance an education campaign regarding illegal knives. Lastly, Frederico Gebauer, a managing director at Kroll, Inc. and former Manhattan prosecutor, will serve free of charge as the District Attorney’s “Knife Sales Monitor” to review and keep track of knife sales. Hopefully, the Manhattan District Attorney’s Office recognizes that many upstanding people who possessed knives for legitimate purposes, such as for work, purchased these knives from these and other stores assuming (with good reason) that there was nothing illegal about it.

June 17, 2010

New York Penal Law 265.01(1): Is a “Butterfly Knife” Considered a “Gravity Knife” in Violation of Criminal Possession of a Weapon in the Fourth Degree

by Jeremy Saland

The New York criminal defense attorneys and former Manhattan prosecutors at Saland Law PC routinely get telephone calls from or represent individuals charged with Criminal Possession of a Weapon in the Fourth Degree in violation of New York Penal Law 265.01. Often times the story starts off the same. Not knowing it was crime to possess certain knives, a person is stopped after the police observe the clip of a knife outside their pocket. Ultimately, a knife is recovered and the police claim that the knife is a “gravity knife.” Whether their arrest is in Manhattan, Brooklyn, the Bronx, Queens or anywhere in New York, the crime is the same. That is, Criminal Possession of a Weapon in the Fourth Degree is a misdemeanor punishable by up to one year in jail. It makes no difference if the person is issued a NY Desk Appearance Ticket, put through the arrest process or it is their first brush with the law.

As I have noted in the past, New York Penal Law 265.01(1) is a per se offense, meaning, the possession of certain weapons is an automatic crime. Possession of a “gravity knife” is one of the specified weapons regardless if your intended use was for work or protection. Having said that, one imperative step, which is fairly obvious, is to ascertain if in fact the alleged “gravity knife” is in fact a “gravity knife.” As both a prosecutor and a New York criminal defense lawyer I have seen police make a mistake as to the nature if the knife. In those cases where the weapon is wrongly alleged to be a “gravity knife” and there is no intent to use the knife in a criminal way, the case may be one which should be dismissed.

June 1, 2010

Criminal Possession of a Weapon in the Second Degree: New York Criminal Defense Attorneys Get Another Top Result in Queens Airport Gun Case

by Jeremy Saland

The New York criminal defense lawyers and former Manhattan prosecutors at Saland Law PC are pleased to announce another victory for a client charged with Criminal Possession of a Weapon in the Second Degree for possessing a “loaded” firearm at John F. Kennedy (JFK) Airport in Queens. Although our client, a Florida teacher, was charged with New York Penal Law 265.03 and faced a mandatory minimum term of 3.5 years in prison if convicted of that felony, Saland Law PC secured a disposition where he pleaded to Disorderly Conduct pursuant to New York Penal Law 240.20. Not only did his plea to this violation avoid incarceration, probation or community service, the plea did not give our client a criminal record at all.

Unfortunately, many honest people who lack any criminal intent are swept into the New York criminal justice system for possessing firearms (pistols, hand guns, revolvers, etc.) without a proper permit to do so. Unwittingly, these people visit New York with the firearm thinking that it is “OK” to possess it in New York City because the have a license or permit to have that firearm in their home state. Often times, when they return home through a New York area airport such as LaGuardia and JFK in Queens, they check the firearm and end up getting arrested. Compounding matters, the firearm is legally loaded, albeit not physically, because the ammunition or bullets are in the hard case along with the gun. The message here is clear. Do not bring your firearm to New York unless you have the proper license(s) in New York State and New York City to do so.

March 29, 2010

Gunshot Wounds & Stabbings: Who is Required to Report These Injuries (New York Penal Law 265.25)

by Jeremy Saland

New York State requires under certain circumstances that specific injuries or wounds must be reported to the police. In fact, pursuant to New York Penal Law section 265.25, failure to report certain wounds by individuals such as an attending or treating physician (mandated reporters) is an “A” misdemeanor punishable by up to one year in jail.

According to New York Penal Law 265.25

March 29, 2010

NY Criminal Defense & New York Penal Law 265.03 – Criminal Possession of a Weapon in the Second Degree

by Jeremy Saland

Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys at Saland Law PC, have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a “primer” for those not familiar with this offense and the strict liability it seems to impose on the accused.

A person is guilty of Criminal Possession of a Weapon in the Second Degree (NY PL 265.03) when:

January 9, 2010

Loaded Firearm Recovered Outside Vehicle: NY Supreme Court Finds that Possession of Firearm “Car Presumption” (NY PL 265.15) Still Applies

by Jeremy Saland

As I have noted in the past, possession of contraband, whether it is narcotics or a loaded firearm, may be constructively possessed or based on a legal presumption found in the New York Penal Law. In the area of Criminal Possession of a Weapon in the First, Second, Third and Fourth Degrees, pursuant to New York Penal Law sections 265.04, 265.03, 265.02 and 265.01 respectively, that legal presumption is codified in New York Penal Law section 265.15. Although subject to certain nuances which must be addressed in each case by your criminal defense attorney, the following is one specific legal presumption found in New York Penal Law 265.15(3) as it relates to this blog entry and a recent court decision:

“The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, large capacity ammunition feeding device, defaced firearm, defaced rifle or shotgun, defaced large capacity ammunition feeding device, firearm silencer, explosive or incendiary bomb, bombshell, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack, plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances: (a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his or her trade, then such presumption shall not apply to the driver; or (c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his or her possession a valid license to have and carry concealed the same.”

November 23, 2009

Florida to New York Firearm Trafficking Ring Disarmed: Brooklyn DA Announces Arrest and 105 Count Indictment

by Jeremy Saland

The Brooklyn District Attorney’s Office has announced that along with the 105 count indictment against Watson Joachin and Ryan Woodard for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.

According to to the Brooklyn District Attorney’s Office:

November 22, 2009

The “Bump Up”: Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02(1))and Your Criminal Defense

by Jeremy Saland

Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Pursuant to Penal Law section 265.02(1), a person is guilty of Criminal Possession of a Weapon in the Third Degree if such person commits the crime of Criminal Possession of a Weapon in the Fourth Degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime. That is right…if you were ever convicted of a misdemeanor Trespass, Petit Larceny for shoplifting, or even Theft of Services for jumping a turnstile and you are now arrested for having a switchblade in your pocket, prosecutors can charge you with a felony. The ramifications are enormous as the misdemeanor is punishable by up to one year in jail and the felony by up to seven years in state prison.

September 26, 2009

Criminal Possession of a Weapon (New York Penal Law 265.02): Defaced Gun, Revolver, Pistol and Firearm

by Jeremy Saland

As I have explained to my readers numerous times in the past, mere possession of a loaded firearm outside your home or place of business without a permit is punishable as a “C” violent felony. This offense carries a minimum sentence of three and one half years in state prison if that possession is without a license and the district attorney does not make you an offer. Whether you mistakenly brought the gun to New York from a state you had a license thinking it was legal (give Plaxico Burress a ring on that) or you knowingly had a stolen revolver, the potential crime is the same. However, consult with your NY criminal defense attorney because this charge, while more severe than other crimes, is not the only charge you may face.

Pursuant to Penal Law section 265.02, you can be charged with a “D” violent felony punishable by a minimum of two years and up to seven years in state prison for possessing an unloaded firearm. Specifically, a person is guilty of Criminal Possession of a Weapon in the Third Degree when such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun. This crime does not require that the gun be loaded.

August 30, 2009

NY Criminal Defense & Criminal Possession of a Weapon (PL 265.01) Part II: Switch Blade Knife, Gravity Knife, Pilum Ballistic Knife & Metal Knuckle Knife

by Jeremy Saland

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Saland Law PCs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law い 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”