Menacing with a Dangerous Instrument v. Weapon Possession in NY: Is an Operable Weapon Required for Both Crimes

It is well settled, and worth getting out of the way right from the start, that operability or a working weapon is generally an essential part of a Criminal Possession of a Weapon charge and crime pursuant to New York Penal Law Article 265. In substance, this means that if a person is accused of possessing a firearm illegally, one of the central elements it that the firearm – gun, pistol, revolver – actually be capable of letting off a shot. This is most easily confirmed through a ballistics test by the police department. If the firearm is incapable of shooting and the ballistics test confirms this failure, then the firearm will not qualify as a firearm for the purpose of certain sections of Criminal Possession of a Weapon. Should it not be operable, your criminal defense attorney would move for a dismissal of the Grand Jury indictment or the criminal court complaint.

While the above may seem great to an accused person, his or her criminal defense lawyer may have some bad news . Yes, an indictment or criminal court complaint may not be legally sufficient, for example, charging New York Penal Law 265.01, New York Penal Law 265.02 or New York Penal Law 265.03, but unless you are solely charged with possessing a weapon or dangerous instrument, does inoperability mean that all other crimes that you face that are associated with that weapon fail as well? The short answer is a resounding “no.”

As noted in People v. McCullum, because the mace charged as a dangerous and deadly instrument had a inoperable canister, the related charges of Third Degree Menacing and Fourth Degree Menacing were dismissed along with Fourth Degree Criminal Possession of a Weapon. However, what if the crime associated with the weapon possession was a different offense? In People v. Kilhullen, 44 Misc. 3d 193 (Rensselaer County 2014), the defendant sought dismissal of two charges, Menacing of a Police Officer in violation of New York Penal Law 120.18 and Criminal Possession of a Weapon in the Third Degree in violation of New York Penal Law 265.02. The substantive issues was whether an inoperable pellet gun was a firearm (it is not) and whether its inoperability rendered its possession a violation of Third Degree Criminal Possession of a weapon (it did not). The court answered the latter question by recognizing that a “deadly weapon” under New York Penal Law 10.00 (12) requires that the weapon is loaded, operable and readily capable of producing death or other serious injury.

Because the prosecution in Kilhullen provided no proof that the pellet gun was operable, the court rightfully dismissed that related crime. Outstanding, however, was what should happen to PL 120.18? Unlike McCullum, where the court dismissed Menacing in the Second and Third Degrees, the language of Menacing a Police Officer has a distinct difference. PL 120.18, in pertinent part, states that the menacing of a police officer must occur with “a deadly weapon, knife, pistol, revolver, rifle, shotgun, machine gun or other firearm, whether operable or not.

Bingo! You got it (you should have, but I assume your criminal lawyer knows). This particular statue specifically makes it clear that the deadly weapon used in the crime of Menacing a Police Officer need not actually work. Simply, its not an element of the crime.

Whatever expression you want to use – this defendant won the battle but not the war – go right ahead. Kilhullen’s attorney beat one of the charges, but failed to secure a dismissal on another offense. However, to look at the case solely in this manner would be short sighted. A dismissal of any charge or crime in an indictment or complaint is more times than not worth the effort to challenge the legality of the offense. Sure, you may not beat each charge, but you can limit your exposure and provide yourself an opportunity to secure a better deal or resolution. However you decide to utilize this case and similar decisions is a choice for you and your criminal lawyer, but both Kilhullen and McCullum (reviewed in a previous blog entry) are worth a moment of your time.

Crotty Saland PC is a criminal defense firm located in lower Manhattan. The New York criminal lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients in New York City, Westchester County, Putnam County, Duchess County, Rockland County and other suburban municipalities.

Updated: