Per Se Weapons & Fourth Degree New York Weapon Crimes: Defining Bludgeon and Identifying Defense Practices in a NY PL 265.01 Arrest

There are countless means in which a non-weapon, if used in a particular way, becomes a weapon in the eyes of the law. In New York, a tree branch, spoon, pair of shoes or just about anything else, if used in violent and assaultive way, can be the basis of an arrest for Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2). Beyond the offense of PL 265.01(2), there are specifically identified items or objects that are automatically weapons irrespective of the manner in which they are used. The two most common weapons outside of firearms are gravity knives and switchblade knives. Possession of these weapons in New York City, Westchester County or, for that matter, Lake Placid, all constitute a violation of Criminal Possession of a Weapon in the Fourth Degree pursuant to subsection one of PL 265.01. Whether your arrest is for NY PL 265.01(1) or NY PL 265.01(2), the crime is punishable by a year in jail. Whether your best defense to a weapon arrest is to mitigate your conduct, attack the search or challenge whether the object in question is in fact a weapon, is something critically important to address at the earliest stage possible with your own New York criminal lawyer or New York weapon attorney.

When deciding how to defend against an arrest for PL 265.01(1), if you are immediately processed or receive a New York City Desk Appearance Ticket is really not that important. If the police or prosecutors are wrong on the law, the vehicle or manner of your arrest and prosecution is of no significance. Instead, an examination of the evidence is critical. While the following case does not identify when a knife, for example, qualifies as a gravity knife, it does address one of the enumerated weapons of Fourth Degree Criminal Possession of a Weapon. Therefore, the message of the case, if not the actual weapon in question, is important to understand.

In People vl. Lin Lu and Shu Lin, 2012KN081120, the defendants were arrested and charged with PL 265.01(1) for possessing a “per se” weapon. The criminal court information (complaint) stated that the defendants were each observed carrying a bludgeon and that said bludgeons were recovered from the ground where the police observed the defendants drop them. Accompanying the complaint, the police provided a supporting deposition that identified the bludgeons as metal pipes. The defendants moved for dismissal of the information against them.

The defendants argued that the complaint (1) asserts a legal conclusion that defendants possessed bludgeons without supplying facts to support this conclusion and (2) that a metal pipe is not a bludgeon. In response, the prosecution argued not that a metal pipe is or is not a bludgeon, but that whether it is should be left to a jury as a finder of facts.

In deciding this case, the court first recognized that the statute does not define “bludgeon.” Therefore, the court did what any grade schooler would do. That is, the court reviewed went to the dictionary (actually, the court looked at some older cases that defined bludgeon and were aided by dictionaries). Some of the relevant cases defining bludgeon were as follows:

People v Visarities: Defendant’s conviction reversed for possessing a 20″ iron bar 3/8-1/2 in diameter bludgeon.

People v Kennedy, 164 NY 449 (1900): Court found that a weapon was a bludgeon where it was an iron rod was inserted inside a metal pipe. The pipe was wound on one end with tape.

People v Braunhut, 101 Misc 2d 684, 687 (Crim Ct, Queens County, 1979): A “spring whip” was not a bludgeon as a matter of law where it was not weighted, was flexible and was used defensively.

People v Phillips, 7 Misc 3d 1004 (County Ct, Lawrence County 2005): The defendant did not possess a “billy” when he was found to have a “collapsible baton.”

Examining the older cases with the current arrest for Fourth Degree Criminal Possession of a Weapon, the court recognized that the bludgeons in the instant matter were only described as metal pipes without anything further. The court then stated:

“…[G]uided by every definition of bludgeon reviewed in cases spanning the past century, it seems clear that while metal pipes may be used as dangerous weapons, possession of a metal pipe is not per se prohibited” even when examined in the totality of the circumstances.

Although the prosecution was given the opportunity to amend the complaint (there is no record that I have seen indicating either way), the theme or importance of this case cannot be understated. An accusation, arrest or allegation of a per se weapon violation pursuant to PL 265.01(1) is not proof of actual guilt. Police officers routinely make mistakes. This is not to say it is malicious, but does your alleged gravity knife truly open with the force of gravity? Similarly, a metal pipe certainly is not a bludgeon and many other “weapons” may be equally non-criminal and innocent as well. Fighting a case based on a wrong conclusion unsupported by facts and evidence may be your best defense of all.

To read materials on felony and misdemeanor New York weapon crimes, follow the links or go directly to Case reviews, statutory analysis, and results of weapons arrests can also be found on the NewYorkCriminalLawyerBlog.Com in an easily readable and informative format.

The New York weapon crimes lawyers and criminal defense attorneys at Saland Law PC routinely represent clients in 4th Degree Criminal Possession of a Weapon arrests and more serious felony gun possession and firearm possession arrests in New York City and area airports. Prior to establishing the criminal defense firm, the two founding criminal lawyers at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office.

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