New York Criminal Lawyer Blog

You received a summons for having an open container of beer somewhere in New York City either on the streets of Brooklyn or Manhattan. The police issued you a pink summons and you believed you were on your way to a slap on the wrist. However, to your surprise, you, in the words of the police, are "searched incident to your lawful arrest" where they find cocaine, a gravity knife or some other contraband. Originally given merely a pink ticket, you are arrested and put through the system or issued a Desk Appearance Ticket for violating New York Penal Law 220.03 or New York Penal Law 265.01. Compounding matters, you made some statements as too the drugs or weapon you are alleged to possess. Whether it came in the form of a New York Desk Appearance Ticket or you were sent to Central Booking, you now need a criminal lawyer to help fight the misdemeanor charge you face. How did this simple "nothing" case evolve into something so serious...

While rarely anything in the practice of New York criminal law is easy and straightforward, a recent decision from an Appellate Court in Western New York has given a little extra support to New York criminal defense attorneys defending clients in scenarios such as the one mentioned above. In People v Kalikow, 2011 NY Slip Op 09452 Decided on December 23, 2011 Appellate Division, Fourth Department, the defendant had received an appearance ticket for having an open container of alcohol. This was a violation of a local municipal ordinance. Upon issuing the appearance ticket, the defendant was ultimately searched and he made damaging statements. What specifically the police recovered and what the defendant actually said is irrelevant. In Kalikow, the issue was whether the conduct of the police was legal (the search) and, if not, whether the evidence recovered could be used against the accused at trial.

In trying to convince the court to permit the evidence against the defendant, prosecutors correctly asserted that warrantless searches are permissible in circumstance such as these because the police may lawfully arrest a person for violating an ordinance. In other words, if the police see you drinking an open container of beer and a law says you are not permitted to do so, then they can arrest you. Because the defendant's actions were "arrestable," prosecutors claimed that the police could then conduct a search incident to that arrest. While technically correct, the Court noted that the record from the lower court (the trial court as opposed to the appellate court), made it clear that the defendant was not arrested, but instead issued a summons (called an appearance ticket, but it appears as if this was more akin to a summons as opposed to a Desk Appearance Ticket in New York City). Further, the Court recognized the police had no intention of arresting the defendant but searched him anyway. In the words of the Court, "[i]f there is no arrest, however, there can be no search incident thereto."

Kalikow should make one thing clear. Merely because a defendant can be arrested, but is in fact not, does not give the police the authority to conduct a post arrest search. Despite the clear ruling from the Court, Kalikow is clearly fact specific, meaning, it is only applicable to limited cases. If, for example, you are issued a summons and the police notice a big bulge in your waist area that they can articulate appears to be a firearm, then the police can investigate further irrespective of that summons. Maybe they pat you down or maybe they make some inquires. Ultimately, if you are searched in a legal manner or during their investigation you state that you have a gun, the case addressed here may not help your cause, but your attorney should still seek to challenge the police and preserve your rights through a Huntley or Mapp Hearing.

To educate yourself further about criminal statutes found in the New York Penal Law, Desk Appearance Tickets, and the crimes of Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Possession of a Weapon in the Fourth Degree (as well as many others), please review the content found through the links above and below.

Established in 2008 by two former Manhattan prosecutors, the founding New York criminal lawyers at Crotty Saland PC utilize the wealth of knowledge and experience they have gained in their collective 24 years of criminal practice to represent clients throughout the New York City region.

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.

According to the New York Post, it appears as if Ms. Graves inadvertently violated Criminal Possession of a Weapon in the Second Degree when she drove from Tennessee with a loaded pistol and entered New York. Although she possessed the proper permit for her .32 pistol from her home state, New York requires anyone within her borders to possess a valid New York permit. Once here, and recognizing that firearms were not allowed at Ground Zero where she was visiting the 911 Memorial, Ms. Graves wrongly believed she could check the weapon without any reprucssions. Not realizing what was in store, Ms. Graves attempted to turn the gun over to security who then brought her to the police. In their presence, Ms. Graves handed the gun into the police. If all of the allegations are true, Ms. Graves perpetrated one of the most serious felonies in the New York Penal Law.

The denizens of Manhattan elected Mr. Vance to serve as District Attorney after decades of honorable and "no nonsense" service by his predecessor, Robert Morgenthau. Whether the tabloids agreed or the political winds blew in a particular direction made no difference to "the Boss." Subjectively, and we certainly can agree to disagree, Robert Morgenthau attempted to always do the "right thing." District Attorneys do not prosecute alleged offenders merely because they can, but because they should. If all of the facts as alleged by the New York Post are true - Ms. Graves was licensed in Tennesse to carry the firearm, she did not initially realize she possessed the weapon at Ground Zero, Ms. Graves attempted to turn in the weapon - and Ms. Graves is a registered nurse with no criminal history who was applying for a position at Brookhaven Memorial Hospital, this case is not one to hang a prosecutorial hat. No greater good would be served to slap down the accused with a criminal conviction whether it be for a misdemeanor or felony. Justice would not demand that a lapse of judgment should prevent a registered nurse from maintaining her license to practice or from coming to New York where her skills would be a much needed asset (frankly, property taxes might scare her and other skilled professionals away anyway). While the decisions to do the "right thing" may not be a popular one in this understandingly hostile firearm climate, Ms. Grave's weapon was not stolen or part of the illegal firearm trade.

Despite what law enforcement might think about sending a message to would be illegal firearm possessors in New York, a flexing of "District Attorney muscle" would arguably send the wrong message in this limited type of case. That is, if you possess a weapon in New York not realizing the law and that firearm is properly registered with a permit elsewhere, hide it and conceal it. Under no circumstance should you bring it to law enforcement. While not doing so could endanger the lives of police officers and regular residents, prosecutors will punish you for doing the "right thing" while they are unwilling to do the same.

If any of the above information or assumptions is incorrect, then a different analysis may very well be necessary when deciding how to prosecute this case. It could be, in fact, that a thorough and full prosecution is necessary. Otherwise, our leaders in law enforcement and elsewhere are elected and appointed to have courage and do the "right thing." Whether the appropriate outcome in this case occurs, and I am not insinuating that it will not, time will certainly tell.

To educate yourself extensively on New York's weapon possession laws including Criminal Possession of a Weapon in in the Second Degree, follow the highlighted links above. There you will find analysis of the various Article 265 statutes as well as links to the NewYorkCriminalLawyerBlog.Com where there is further review of legal decisions and cases in the local New York City area news.

Established by two New York criminal lawyers, the former Manhattan prosecutors at Crotty Saland PC represent individuals accused of weapon crimes throughout the New York City region.

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.

Conspiracy in the Fourth Degree: NY PL 105.10(1)

An "E" felony, Conspiracy in the Fourth Degree, pursuant to New York Penal Law 105.10(1), is punishable by up to one and one third to four years in state prison. The basic premise of this crime is that a person is guilty of this crime if he or she has the intent that an "B" or "C" felony transpire or take place. Assuming this intent exists, the accused must also agree with at least one other person to engage or cause the performance of the intended act.

Applying the statutory language to the allegations against Pimentel, there are critical factors that one must first understand. First, Mr. Pimentel is also charged with violating New York Penal Law 265.04(1), Criminal Possession of a Weapon in the First Degree. Although this offense will be addressed further below, NY PL 265.04 satisfies one element of the Conspiracy charge as it is a "B" felony.

Another essential element to Conspiracy is that the accused not act alone. Although reports describe Pimentel as a "lone wolf," he is still charged with Conspiracy. Practically speaking, how can Pimentel be a "lone wolf" yet also be seeking to "join forces" with other co-conspirators? To answer this question, one must dig a little deeper.

According to New York Penal Law 105.30, it is no defense to a prosecution for Conspiracy that due to legal incapacity, unawareness, or to other factors precluding the mental state required for the commission of Conspiracy or the actual crime, the alleged co-conspirator or conspirators could not be guilty of the Conspiracy or the intended crime. That made no sense, did it? Let's try that again below...

In non-legal jargon, it makes no difference if you sought to detonate a bomb, as a conspirator with another person, but ultimately did so alone because there was no other party that shared your intent or desires. You could still be guilty of Conspiracy if you believed you had co-conspirators in your plot. It would make no difference in the eyes of New York State whether your co-conspirators had no intent in following through or were undercover police officers. In fact, even if your alleged co-conspirators were acquitted at trial, it would still be possible for a jury to unilaterally convict you of Conspiracy.

Although the Conspiracy charge against Pimentel is certainly interesting in terms of how the crime is prosecuted in this particular scenario, it is by no means close to the most serious offense for which the defendant faces.

Soliciting Providing Support for an Act of Terrorism in the Second Degree: NY PL 490.10(1)

A "D" felony, Soliciting or Providing Support for an Act of Terrorism in the Second Degree, pursuant to New York Penal Law 490.10(1), is punishable by up to seven years in state prison. Pimentel would be guilty of this crime if he intended that material support or resources would be used to plan, prepare, carry our or aid in either an act of terrorism or the concealment of the same. Additionally Pimentel must have raised, solicited, collected or provided material support or resources.

To better understand this statute, one must review all of the underlying definitions of this crime. One of those terms is "act of terrorism." An "act of terrorism" includes any act that is intended to intimidate or coerce a civilian population. Certainly, if true, prosecutors could make a powerful argument that detonating a pipe bomb filled with shrapnel in New York City would be an act of intimidation.

A second legal term, "material support or resources," also needs defining. This term is extremely broad and includes, but is not limited to, weapons, lethal substances and explosives.

Again, in non-legal jargon, in order for the Manhattan District Attorney's Office to successfully prosecute Pimentel they would have to prove beyond a reasonable doubt that the defendant had the intent that a weapon or explosive be used to carry out an act to intimidate a civilian population and that Pimentel collected or provided these explosives or weapons in order to do so.

Criminal Possession of a Weapon in the First Degree: NY PL 265.04(1)

Although a crime that has no legal element that involves terrorism, Criminal Possession of a Weapon in the First Degree is the most serious offense facing Pimentel. In fact, should the alleged terrorist be convicted of New York Penal Law 265.04(1), he would face a minimum of five years and maximum of twenty-five years in state prison. It is not unlikely that a judge would sentence Pimentel closer to the latter should he be convicted after trial.

The easiest crime to understand, one is guilty of CPW 1 if one possesses an explosive substance with the intent to use it unlawfully against another person.

As brief and concise as possible, theses are the main charges that prosecutors will likely present to the Grand Jury in the case against Pimentel. Whether there are other crimes, the defendant's attorney seeks to have his client testify or examined for mental stability, or some other interesting storyline plays out, Vance and his gaggle of prosecutors will have much to chat about beyond ATM machines and steakhouse waiters as they gobble on turkey, stuffing and a sides of cranberry later this week.

To learn more about the crimes listed above, including Criminal Possession of a Weapon, follow the highlighted links to the particular offense or to CrottySaland.Com.

Crotty Saland PC is a New York City criminal defense firm representing those accused of crimes throughout the metropolitan area. The New York criminal lawyers who founded Crotty Saland PC both served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office.

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).

So maybe we shouldn't make fun of those crafty thieves who only bring toy guns to commit a Robbery. While a victim of any crime certainly will not chuckle, a toy gun can completely change the dynamics of a Robbery case. In People v. Lyde, 98 A.D.2d 650 (1983) the First Department Appellate Division of New York reduced a conviction of four counts of Robbery to two counts of Robbery in the Second Degree and two counts of Robbery in the Third Degree. Lyde's original conviction for Robbery in the First Degree was predicated upon the fact that he had "displayed what appeared to be a pistol" during the commission of several robberies. However, Lyde was arrested in possession of a toy gun, and it was shown that he perpetrated the robberies only with that toy and not a real pistol. Convincing as it may have appeared to the victims, it was not a deadly weapon. Therefore, the court correctly reduced the First Degree Robbery conviction. Similarly, the Appellate Court in People v. Wilcox, 53 A.D.2d 738 (1976) ruled that the lower court had erred when submitting to the jury the crime of Robbery in the First Degree. Wilcox had used a starter's pistol during the commission of the Robbery. The court reasoned that the starter pistol was not a firearm capable of causing death or serious physical injury. Arguably, while a starter pistol looks no different than a real one, it merely makes a "bang" to signal the beginning or a race. It cannot be used in a more violent or deadly fashion. Therefore, Wilcox, like Lyde, was convicted of Robbery in the Second Degree not first.

It is interesting to note that there is some case law which suggests that one does not have to show an actual weapon to be convicted of Robbery in the Second Degree. Confusing? Yes, but in People v. Knowles, A.D.2d 116 (1979), the defendant was convicted of Robbery in the Second Degree after he coerced the victim into surrendering property by holding his hand in his pocket in such a way as to give the victim the impression that he had a gun. Gullibility of the victim aside, the court reasoned that in this situation of making the impression of a gun was no different than holding an inoperable gun for purposes of the statute. In other words, putting your finger or a stick in your jacket pocket and poking it out may look as if you are possessing a gun of some kind. This case may be a bit of an outlier, but it shows how severe the New York criminal courts can be when a firearm, or even the impression of a firearm, is involved in any Robbery offense found in Article 165 of the New York Penal Law.

To better understand the crimes of Robbery and Criminal Possession of a Weapon, follow the highlighted links. Additional materials on these and other crimes is available through the NewYorkCriminalLawyerBlog.Com where you can find analysis of cases in the New York City media, criminal statutes and legal decisions.

Founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent the accused throughout New York City and the region.

Additional Crotty Saland PC websites and bogs:

NYDeskAppearanceTicket.Com - Misdemeanor and Desk Appearance Ticket Crimes
NewYorkTheftAndLarcenyLawyers.Com - Felony & Misdemeanor Theft Crimes (November 2011)
NewYorkTheftAndLarcenyLawyersBlog.Com - Felony & Misdemeanor Theft Crime Statute & Case Analysis (November 2011)

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.

New York Firearm Possession

Generally, a "firearm" is defined as any revolver or pistol. However, the definition includes other types of guns with certain lengths or modifications. A "firearm" does not include legally defined antique firearms.

New York Gravity Knife Possession

A "gravity knife" has a blade that is released as a result of the user manipulating gravity (flinging it open) or with centrifugal force. Once open, the blade must also lock into place. This type of knife should not be confused with a "butterfly knife."

New York Switchblade Knife Possession

A "switchblade knife" is any knife where in the handle a button is pressed causing the blade to release by a spring or similar device.

New York Electronic Stun Gun Possession

A "stun gun" is defined as a device whose primary design is for use as a weapon. The purpose of this weapon is to stun another person or even knock out that other person through the use of a an electric shock.

New York Pilum Ballistic Knife Possession

Similar to a "switchblade knife," a "plum ballistic knife" is any knife that contains a blade that can be projected from the handle when a button, spring, lever or similar release device is pressed.

New York Metal Knuckle Knife Possession

A "metal knuckle knife" is a weapon that has a blade that may be open or closed. When closed, the blade as well as the knuckles cannot function, but when opened, but the blade and the knuckles can function. It is important to note that although a specifically articulated weapon in this statute, "metal knuckles" are not defined in the New York Penal Law, but through legal decisions and case law.

New York Chucka Stick Possession

A "chucka stick" is a weapon that is often referred to as "nunhchakus." "Chucka sticks" are objects designed for the primary purpose to be used as weapons and contain two or more lengths of rigid material (often wood or metal) that are connected by a rope or chain. This design allows the free movement of one end while the other is being held.

Despite the fact that the New York Penal Law under Article 265 identifies specific weapons which are criminal to possess, the statutes do not actually define each term. Compounding matters, even these terms have been reviewed and analyzed by the courts. The following are some examples as they relate to and define "gravity knives," "butterfly knives" and "metal knuckles."

• Is a "Butterfly Knife" a "Gravity Knife" Pursuant to New York Law

• What Defines a "Metal Knuckle" in the New York Criminal Justice System

• Is it Enough for the Police to Merely Conclude You have a Weapon

Unfortunately for many people, the first time they read or research what constitutes weapon possession in New York State and New York City or the first time they educate themselves on the criminal law, is after they have been arrested or issued a Desk Appearance Ticket. Equally unfortunate, ignorance of the law is no defense to your possession of a switchblade knife or gravity knife. Beyond the criminal reality that most District Attorney's Offices in New York City and the region do NOT make an initial offer to weapon crimes at arraignment and potentially beyond, the collateral consequences to a teacher, lawyer, physician, financial services employee or any other professional is tremendous. As a result, it is imperative to sit down with the counsel of your choice, ascertain or develop a potential defense - whether legal, factual or mitigation - and put that defense into motion.

For a wealth of information and other related articles regarding New York weapon crimes, statutes and legal analysis as well as information on Desk Appearance Tickets in New York City, click through the hyperlinks to content of our New York Criminal Lawyer Blog or Crotty Saland PC website. Although nothing contained on this or other Crotty Saland PC websites is advice in your particular case, the entries will give you the basic knowledge and education to better understand the charges you face so you can have a more informed consultation with your legal counsel.

Crotty Saland PC is a New York City based criminal defense firm founded by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent the accused in felony and misdemeanor weapon crimes, arrests and investigations throughout the New York City region.

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."

Unlike switchblade knives, gravity knives and even lesser known chucka sticks, the New York State legislature did not define metal knuckle in the New York Penal Law. This fact makes it more difficult for individuals to know what they are permitted and not permitted to possess. In an attempt to rectify any ambiguity, courts must define the objects that the statutes do not. Recently, a Rockland County Supreme Court Justice did just that in addressing whether or not an object constituted a "metal knuckle."

In People v. Laurore, 10-252, NYLJ 1202483040232, at *1 (Sup Ct. Rockland Decided February 15, 2011), the defendant was charged with numerous crimes including New York Penal Law 265.01(1) for possessing an alleged "metal knuckle." In finding that the item was a metal knuckle, the Court examined the following:

People v. Singleton, 127 Misc. 2d 735 (Crim. Ct. New York 1985.)

The New York Criminal Court found that an instrument worn on the hand that had leather straps and metal spikes was a "metal knuckle." In determining that the leather strapped and metal spike instrument was in fact a "metal knuckle," the court established a three prong test (the following test is directly quoted from the case).

1. Whether a blow by a fist wearing the instrument in question causes metal to come into contact with the victim's body.

2. Whether the instrument is designed so that it readily can be used offensively against the human body and

3. Whether the design is such that it cannot reasonably be put to any use other than to enable the wearer to inflict a blow with a fist covered by metal or pieces of metal.

Applying the above test to the object recovered from the defendant, the court determined that the item was in fact a weapon and a "metal knuckle." Here, the item had two holes that a person could slide their fingers into and two metal pointed spikes. When worn, these "metal knuckles" sit on the hand so that the metal spikes point forward from the front of the hand where they would strike another person if used by the defendant when he threw a punch. Although "metal knuckles" may come in different sizes and shapes, if their characteristics meet the requirements as set forth above, the object will likely qualify as a weapon.

For in depth information regarding New York weapon crimes including Criminal Possession of a Weapon in the Fourth Degree, please follow the associated link to Crotty Saland PC's New York Weapon Information Page. At the bottom of that page are related blog entries and a link to the New York Weapon section of the New York Criminal Lawyer Blog. The New York Criminal Lawyer Blog contains additional information on criminal statutes, legal decisions and analysis of interesting cases in the news.

The New York criminal defense lawyers at Crotty Saland PC served as Manhattan prosecutors before starting the criminal defense firm. Crotty Saland PC represents defendants throughout the New York City region in all stages of criminal litigation.

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."

Defining Dangerous Instrument

The law defines "dangerous instrument" as any type of object or substance. "Dangerous instrument" means any instrument, article or substance, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing a serious physical injury or even death.

A question that New York criminal defense lawyers, prosecutors and judges often face, however, is for practical purposes, what type of instrument fits this definition? A shoe? A garbage pail? A knife? How about a Sony Playstation?

While it might seem comical to ask such a hypothetical, a Richmand County (Staten Island) Criminal Court Judge just ruled on this exact issue. In People v. Jermaine Scott, 2010RI002291, the defendant was alleged to have intentionally struck a woman on her head with the Sony Playstation gaming console during a fight. After reviewing the law, the court found that the Playstation console was a dangerous instrument in this context. The court reasoned:

"It is...the manner in which the instrument is used, not its inherent nature, which makes an object a dangerous instrument. People v. Carter, 53 N.Y.2d 113 (1981); People v. Wilkerson, 184 Misc.2d 949 (Crim. Ct. New York Co. 2000). An innocuous object intentionally used to injure or kill is, therefore, a dangerous instrument pursuant to statute. People v. Krotoszynski, 43 A.D.3d 450 (2nd Dept. 2007) (television remote control used as a dangerous instrument)."

Obviously, the law is clear. The instrument in question need not be a gun or a knife, but something less threatening in nature as long as it is capable of and threatened to be used in a manner to cause serious physical injury or death.

For additional information on the laws regarding New York Assault crimes and New York Weapon laws, please follow the highlighted links. Additional information ranging from legal decisions to statutes can be found on the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com

Founded by two New York criminal defense lawyers and former Manhattan prosecutors, Crotty Saland PC represents clients from criminal investigations and arrests through hearings and trials in New York City and the suburban counties.

Crotty Saland 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.

Fortunately for our client, Crotty Saland PC was able to mitigate the conduct, provide proof of ownership and convince the District Attorney's Office that punishing our client with a felony or misdemeanor would serve no greater purpose. Moreover, putting the young woman in jail or requiring probation would benefit no one. Ultimately, once the six month period is complete, our client can continue life without the blemish of any kind of record at all. Although this case, like every case, is unique and the results here cannot predict future results, this non-criminal resolution to a gun possession case follows a string of successes Crotty Saland PC has had in the recent past.

For further information on New York gun laws, New York weapon laws and the crime of Criminal Possession of a Weapon, please follow the highlighted links to the New York Criminal Possession of a Weapon information page. There you will find statutes as well as links to the New York Criminal Lawyer Blog where there is extensive information including legal decisions and newsworthy cases.

Crotty Saland PC is a New York criminal defense firm representing the accused throughout the New York City area. The founding partners both served as prosecutors in the Manhattan District Attorney's Office prior to becoming New York criminal defense attorneys.

Although it sounded horrific on paper, the New York criminal defense lawyers at Crotty Saland 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.

After providing the District Attorney's Office with a significant amount of mitigating factors, including proof of the gun's legal North Carolina registration and ownership, the work and familial history of our client, and other directly relevant information, all parties came to an agreed upon disposition. Our client payed off his old summonses, forfeited the firearm and over the course of the year provided the District Attorney's Office with proof (clean urine readings) that he was not using any controlled substance. As a result, the District Attorney's Office permitted our client to enter a plea to Disorderly Conduct with the condition that he remains out of trouble for the next year.

On par with some of our recent successes, this case, like ever case, is unique and required a specifically tailored defense (prior results do not guarantee a future outcome). All things considered, our client obtained one of the best results in the face of these particular serious allegations. Fortunately, our client's ignorance about the gun laws in New York and possession of drugs for personal use did not destroy his career or future.

For extensive information on New York gun and weapon crimes as well as Criminal Possession of a Weapon, please follow the appropriate link. Moreover, further information on Criminal Possession of a Controlled Substance and New York drug crimes can be found on the respective link as well. The Crotty Saland PC website and New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com) also has legal analysis, criminal statutes, recent case decisions and newsworthy cases as to these and other areas of criminal law.

The New York criminal defense lawyers at Crotty Saland PC represent the accused in allegations of weapon crimes throughout the New York City region. Before starting the criminal defense firm, both partners served as Assistant District Attorneys in the Manhattan District Attorney's Office.

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.

Whether or not bail is set, your New York criminal lawyer will have the opportunity to discuss the facts of the case, whether you had a permit in your home state and legally purchased the firearm, and other important facts with a supervisor or senior prosecutor. The last thing you want to have happen is that the District Attorney's Office presents your criminal case to a Grand Jury. If that happens, explaining away the error that you made will be exponentially more difficult while the likelihood that prosecutors will seek state prison will increase drastically.

Each case involving CPW 2 is not only extremely serious, but is unique and requires a specific analysis and defensive plan. The former Manhattan prosecutors and New York criminal defense attorneys at Crotty Saland PC have had tremendous success and have obtained top results for clients charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01) and other weapon crimes. In fact, while past success does not guarantee future results, we recently obtained a dismissal and two violations whereby three separate clients walked away from from this terrible experience (all three had "loaded" guns at the airport) without a criminal record or going to jail.

For extensive information on New York gun/firearm and other weapon crimes, Criminal Possession of a Weapon and gun arrests at LaGuardia, JFK and other New York or Queens airports, please follow the highlighted link. Additional information including statutes and legal decisions can be found there as well.

The attorneys at Crotty Saland PC are New York criminal defense lawyers representing clients accused of or arrested for crimes throughout the New York City region.

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.

Despite what you might think, the various degrees of Criminal Possession of a Weapon in New York do not specifically define revolvers as opposed to pistols, "handguns," or other weapons. Generally, most of these types of guns are defined as "firearms."

Pursuant to New York Penal Law section 265.00(3), the following weapons fall under the umbrella of "firearms" in New York:

(a) Revolvers and pistols; (b) a shotgun with on ore more barrels less than eighteen inches long; (c) a rifle with at least one barrel less than sixteen inches long; a modified shotgun or rifle with an overall length of less than twenty-six inches or (d) and assault weapon. While this entry will not go into greater detail as to the legal definitions of these particular weapons, New York Penal Law section 265.00 further defines some of these terms such as "shotgun" and "rifle." While most firearm crimes prosecuted in New York are related to revolvers and pistols, if you are charged with this type of offense it may be important to ascertain whether the weapon you are alleged to have possessed is actually of the type defined in this section of the New York Penal Law.

For further information on New York gun and weapon crimes including potential punishments, specific statutes and general descriptions, please follow the highlighted link to Crotty Saland PC's Weapon Crimes section of the website. Additional information relating to legal issues including what constitutes a loaded gun in New York, search and seizure, court decisions and other information can be found on the Weapon Offense section of the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com.

The New York criminal defense attorneys at Crotty Saland PC have successfully represented numerous individuals in gun and weapon crimes throughout the New York City region including individuals charged with possessing loaded firearms in New York and regional airports. Prior to starting the criminal defense firm, both members served as prosecutors under Robert Morgenthau in the Manhattan District Attorney's Office.

As a New York criminal defense attorney and a former Manhattan prosecutor, I cannot count the number of cases that I have handled involving the crime of Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 265.01. Whether an individual is issued a New York Desk Appearance Ticket for 265.01 or is arrested and put through the system, often times the issues are the same. What was the basis of the police officer's stop and search of you? Moreover, for example, although the police officer claimed the knife was a switchblade or gravity knife, is it in fact one as set forth in the New York Penal Law? As noted in a previous entry involving gravity knives and butterfly knives in New York, merely because a police officer or prosecutor states that such a knife is per se illegal does not make it so.

This entry will deal with a different legal issue. Is a complaint against you alleging your possession of a per se weapon sufficient without the deponent, usually a police officer, stating the basis of his knowledge or conclusion? Alternatively, is a complaint against you sufficient where a police officer merely states a conclusion that you are possessing a particular weapon without any explanation?

In People v. Thomas, 2010NY026966, a Manhattan Criminal Court Judge addressed this issue. In that case, the accusatory instrument against the defendant, in pertinent part, stated as follows:

"...[the police officer] recovered a shirken, commonly known as a Kung Fu Star, hanging from a chain around the defendant's neck."

In dismissing the accusatory instrument as facially insufficient, the court followed the Court of Appeals recent decision in People v. Dreyden, __ N.Y.3d __, 2010 N.Y. Slip Op. 05243 (June 15, 2010) and stated that:

"The accusatory instrument in the instant case merely alleges that the defendant was in possession of a shirken without any indication of the factual basis for such conclusion. "

Although fairly simple, the legal premise is clear. If you are accused of possessing, for example, a gravity knife, switchblade, Kung Fu Star, or any other per se weapon, merely because a police officer says it is such does not make it so. How is the weapon described if at all? Is it consistent with the legal description of the weapon you are alleged to possess? As a result, it is incumbent upon your New York criminal defense lawyer to challenge the sufficiency of the allegation against you in order to seek the dismissal of the accusatory instrument if the police officer has failed to support his conclusion.

As noted above, there are many ways to "skin a cat." The search of your person may be improper or the "weapon" you possess may in fact not actually be the type of weapon described in the New York Penal Law (it may be worthy to discuss with your counsel about getting the knife "tested"). Even if the "weapon" in question is of the type set forth in the New York Penal Law, Dreyden or Thomas may be applicable.

For further information on the crime of Criminal Possession of a Weapon in the Fourth Degree (NY PL 265.01) or any New York Weapon crime, please follow either of the highlighted links. Information regarding New York Desk Appearance Tickets may be found through the respective link as well. Additional information on these and other crimes as well as recent legal decisions and newsworthy cases can be found at the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

A New York criminal defense firm representing clients throughout the New York City region, the two founding criminal defense lawyers at Crotty Saland PC served under Robert Morgenthau in the Manhattan District Attorney's Office prior to starting the firm.

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.

According to the Manhattan District Attorney's Office press release, "the $1.9 million will be distributed to the City and State: 10 percent will be given to the State ($190K); 51 percent will be given to the City ($969,000); and the remainder ($741,000) set aside for our law enforcement partners." It is interesting to note that District Attorney Vance, Jr.'s approach to redistributing the wealth and detailing how the monies will be shared differs from the past when New York City complained of not getting a larger piece of the forfeiture pie.

This program and investigation by District Attorney Vance, Jr. is not over despite its apparent success to date. In fact, the District Attorney's Office website is clear:

"The District Attorney's Office has begun Phase II of the investigation, targeting out-of-state vendors selling to New York residents - which is a serious crime. Those companies are opening themselves to prosecution to the fullest extent of the law."

For further information on Criminal Possession of a Weapon in the Fourth Degree and knife crimes, please follow the highlighted link.

Crotty Saland PC is a New York criminal defense firm. Prior to founding the practice, the New York criminal defense attorneys at Crotty Saland PC served as prosecutors in the Manhattan District Attorney's Office.

The New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland 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.

Although it seems fairly easy, a dispute may arise as to the nature of the knife and wether or not it qualifies as a "gravity knife." Simply put, a "gravity knife," defined under New York Penal Law 265.00(5) is a "knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device." Again, seems fairly straight forward, right?

Well, what if that alleged "gravity knife" is a "butterfly knife?" What if the knife is one that opens with the force of gravity into place, but, unlike a true "gravity knife" it does not lock into place? Is there a violation of New York Penal Law 265.01(1)? If not a violation of New York Penal Law 265.01, is there a violation of any law?

The easy answer to this question is that the "butterfly knife" as described above is not a "gravity knife" and therefore, your mere possession of it is not a violation of New York Penal Law 265.01(1). See People v. Zuniga, 303 A.D.2d 773 (2nd Dept. 2003). However, do not think that because it is not a per se weapon possessing a "butterfly knife" may never be criminal. In fact, the possession of any knife with a blade size equal to or exceeding four inches is a violation of the New York City Administrative Code (10-133). Although only a violation, if you possess this knife, or any object for that matter, with the intent to use it unlawfully against another, you will face the "A" misdemeanor of Criminal Possession in the Fourth Degree pursuant to subsection two of New York Penal Law 265.01.

Lastly, and again equally important to know, New York law only requires that you knew you possessed a knife and not that you knew you possessed a particular type of knife. In other words, if you knowingly had a knife on your person, but you had no idea it was a "gravity knife," your lack of knowledge as to the type of knife will not be a defense to its possession.

The above concepts are relatively straight forward in the New York Penal Law. However, the legal decisions, case law and statutes continually grow. For further information on weapon offenses such as Criminal Possession in the Fourth Degree, please review the New York Weapon Possession & Crime section of the Crotty Saland Website or the New York Weapon Possession section of the New York criminal lawyer blog.

Founded by two former Manhattan prosecutors, the New York criminal defense lawyers at Crotty Saland PC represent clients in all criminal matters throughout the New York City region.

The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland 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, Crotty Saland 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.

It should go without saying that no two cases are the same and the results in one criminal matter do not guarantee similar results in a case that appears the same. Having said that, you should consult with a New York criminal defense attorney and keep yourself educated on the laws involving guns, pistols, revolvers and other firearms so that you can avoid the embarrassment and devastating impacts of an arrest.

For further information on Criminal Possession of a Weapon including New York gun and firearm crimes as well as information regarding gun arrests at New York airports, please follow the highlighted link. For information regarding legal decisions and various weapon statutes in New York, please review the New York Criminal Lawyer Blog section on weapon offense.

Crotty Saland PC is a New York criminal defense firm representing clients in all criminal investigations and arrests. Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland PC represents clients throughout the greater NYC area.