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.