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The Legal Burden in Establishing a Working “Weapon” in New York Criminal Court: NY PL 265.01

From gravity knives to switchblade knives, whether in Manhattan, Brooklyn, Queens or out in Westchester County, as an experienced New York criminal lawyer I have frequently seed defendants charged with Criminal Possession of a Weapon in the Fourth Degree. A misdemeanor, CPW 4, pursuant to New York Penal Law 265.01, is punishable by up to a year in jail. Often times, the alleged offenders are not taken into full custody (traditional arrest, spending a night in jail), but instead are issued a Desk Appearance Ticket (largely issued to NY residents to make it easier on the police, who can issue the ticket and release the ‘defendant’ from their custody without having to send the offender to central booking). More important than procedure, however, is the fact that District Attorney’s Offices in the New York City area consider Criminal Possession of a Weapon one of the most serious types of misdemeanor offenses. This fact is reflected in tough and limited offers and plea deals at arraignment (the first time one sees a judge) regardless of whether a DAT was issued or not.

Briefly, a person is guilty of NY PL 265.01, if that person possesses a weapon specified in the statute (such as a gravity knife or switchblade knife). An individual’s intended used of the “weapon” is not a factor in their guilt. That is, even if you don’t intend to harm anyone, if you have a knife that is deemed a weapon in your possession, you are guilty of the crime. Logically then, mounting a defense against Criminal Possession of a Weapon in the Fourth Degree rests largely on showing that the search and recovery of the weapon was improper, the weapon was not in your possession or showing that in fact the item is not a weapon.

In this blog post, I will examine a recent New York criminal case, People v. Paul Mathis, 2010RI005220, NYLJ 1202499472471, at *1 (Crim., RI, Decided June 24, 2011), where the defendant was charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to NY PL 265.01 for possessing a “gravity knife.” As I have explained in previous posts, in New York an Assistant District Attorney must present non-hearsay factual allegations (for example, an arresting officer’s corroborated statements) that provide reasonable cause to believe that the defendant committed each element of the offense being charged. In People v. Paul Mathis, the defendant moved to dismiss the charges prior to trial, claiming that the factual allegations presented by the People were “facially insufficient under statute and case law.”

The accusatory instrument indicated that the arresting officer stated that when he retrieved the knife from the defendant’s possession the knife’s blade “released from the handle by the force of gravity or centrifugal force and locked in place by means of a button, spring, lever or other device.” The defense argued first, that these words copy verbatim the statutory definition of a gravity knife, and thus are conclusory and second, that the allegations lacked any reference to the officer’s training and experience.

The court denied the defendant’s motion to dismiss concluding that the factual allegations were sufficient to establish a prima facie case against the defendant (the level of proof to bring charges is minimal, as opposed to the reasonable doubt standard required for a conviction). The court believed that although the allegations did not refer to the officer’s prior experience or training, the conclusion that the knife in question was a gravity knife was based on the officer personally testing to determine that the knife operated according to the statutory definition. In other words, the actual test that the officer performed–dropping the knife blade down– was enough to bring charges against the defendant for Criminal Possession of a Weapon in the Fourth Degree.

Applying this case more broadly, it is clear that some courts are lenient when determining whether the proper foundation for establishing the crime of Criminal Possession of a Weapon is satisfactorily set forth. Even if the criminal complaint is facially sufficient, however, by no means are your potential defenses eradicated. As noted above, was your stop and search legal? Even if the police officer concludes you possess a particular weapon, is it in fact operable? Assuming your search was proper and the weapon meets the legal standards, can you mitigate your conduct as to obtain a non-criminal disposition as opposed to being crippled with a criminal record? The answers to these questions may not be easy, but vetting them with your counsel and analyzing the information against you is critical in any criminal case.

To learn more about Criminal Possession of a Weapon and Desk Appearance Tickets, review any of the links above or below. Founded by two New York criminal lawyers who served as Manhattan Assistant District Attorneys, Crotty Saland PC represents the accused throught the New York City region.

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