Mace and Other Dangerous and Deadly Instruments: Must Prosecutors Prove Operability

A gun is not always a gun in the eyes of the law. A firearm is not always a firearm as it is defined by New York criminal court judges. An arrest for a can of mace, you guessed it, is not always a can of mace for the purpose of New York Penal Law 265.01. Confusing, right? Maybe not. A critical factor or element to weapon crimes in New York is whether or not that particular weapon is operable. It is not merely enough to possess a firearm, a “dangerous knife” or other “dangerous or deadly instrument” with the intent to use it against another person if operation is required. Certainly, these are elements to PL 265.01(2), but as your criminal lawyer should be able to explain to you, if the object in question is not operable, then you very well could, and likely should, have grounds to seek a dismissal of the Criminal Possession of a Weapon charge for which you were arrested.

In People v. McCullum, 184 Misc.2d 70 (NY County Crim. Ct. 2000), the defendant was arrested by the NYPD for possession of mace after he threatened to use the same. Charged with Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01(2)), Second Degree Menacing (New York Penal Law 120.14) and Third Degree Menacing (New York Penal Law 120.15), the defendant argued that because the criminal complaint against him did not provide any evidence of operability, the people failed to establish that the mace was in fact a “dangerous or deadly” instrument in violation of PL 265.01. Because the lack of operation dooms the charge of Fourth Degree Weapon Possession, then the Menacing charges should likewise be dismissed. After all, how could a defendant threaten another person with a “dangerous or deadly” instrument when that instrument could neither be deadly nor dangerous due to its inoperability?

In ultimately siding with the defendant and dismissing the charges, the court rationalized that while mace is not a rifle, shotgun or firearm, those particular weapons certainly were both “dangerous or deadly.” In crimes involving these weapons, both courts and the law mandate that the prosecution prove and establish operability. For example, in a gun case a ballistics test would confirm the weapon in question actually worked as it was intended.

Make no mistake. A canister of mace has the potential to seriously injure another person. However, if it cannot be “fired” or the noxious substance contained inside the canister has no way to spray another person, then it has no ability to inflict the type of damage that the New York Penal Law seeks to prohibit.

Cases such as McCullum, may or may not come into play when you and your criminal defense attorney are challenging your arrest and criminal charges relating to a Criminal Possession of a Weapon crime. Could a “flick of the wrist” confirm the operability of a gravity knife, a ballistic test by the NYPD Firearms Unit corroborate that the revolver or pistol shoots, and a mere squeezing of a lever and the emission of mace confirm the canister of mace is in fact “doing its job?” The simple answer may be as straight forward as “yes,” but without this essential evidence these charges should fall flat on their respective faces.

To better understand the different degrees and types of New York Criminal Possession of a Weapon crimes, the elements of a New York Menacing arrest, and other violent and weapon related offenses found in the New York Penal Law including Fourth Degree Criminal Possession of a Weapon, a quick review of the linked content as well as a reading of this blog and websites listed below will provide you the foundation you need to consult with your attorney and implement your strongest defense.

Crotty Saland PC is a New York City and suburban area criminal defense firm founded by two former Manhattan prosecutors.

Updated: