Weapon Possession

September 27, 2017

Can I Seal My Criminal Conviction for Weapon Possession: Applying NY CPL 160.59 to NY PL 265.01(1)

A crime that is routinely prosecuted in New York City, and likely elsewhere through the State of New York, is New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon. More specifically, if you knowingly possess a gravity knife or a switchblade knife you are guilty of a class “A” misdemeanor. Because of the severity of the crime, its creation of a permanent criminal record as a result of a conviction, and the fact that what the State identifies as a gravity knife often results in regular people being charged with crimes they had no idea they violated, there are many offenders who should consider having their old criminal conviction for PL 265.01 sealed in accordance with New York Criminal Procedure Law 160.59. For that matter, whether you had metal knuckles, a slingshot, shirken, chucka stick or any other per se weapon, conviction sealing is an option to consider.

One of the problems with PL 265.01, and reason why it is an offense that you should seek to seal from your criminal record, is that on its face a conviction for any weapon offense has the worst possible connotation for and to a prospective employer. While one might argue a switchblade knife is often associated with a dangerous instrument, a gravity knife can be something as simple as a multi-tool purchased at a hardware store. While this blog does not address the merits of the law, the questions posed here are can you apply to have your conviction for NY PL 265.01 sealed with the passage of CPL 160.59 and is Fourth Degree Criminal Possession of a Weapon an eligible offense?

September 24, 2017

Understanding the Difference Between Second Degree Criminal Possession of a Weapon and Criminal Possession of a Firearm

by Jeremy Saland

New York State has numerous laws and crimes regulating the use and possession of firearms and other weapons. Whether one is supportive of these statutes such as the Safe Act or not, these laws are some of the most rigid and strict in the nation. While they are all codified in New York Penal Law Article 265, the crimes vary from class “A” misdemeanors to class “B” felonies. There is little dispute that the most common of these offenses is Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(1). However, the types of per se objects that qualify as weapons, including gravity and switchblade knives, may be serious, but not as significant as their firearm related brethren. Of these crimes, those likely prosecuted the most in New York City and at both LaGuardia and JFK Airport in Queens are Second Degree Criminal Possession of a Weapon, New York Penal Law 265.03, and Criminal Possession of a Firearm, New York Penal Law 265.01-b. With that in mind, this blog entry addresses some of the most significant differences between two crimes that are somewhat similar and regularly prosecuted, but drastically different in their potential sentence and punishment upon a conviction.

July 31, 2017

Another JFK Airport Firearm Case Dismissed: Military Vet’s Arrest for Checking Pistol at Airport Gets ACD’d

by Jeremy Saland

Despite having top training and experience in what is the most stressful of life situations and the respect of his friends, neighbors and nation as a veteran of the armed forces, nothing prepared a recent Saland Law PC client for the overwhelming fear and concern that resulted from an arrest at New York’s JFK Airport after he tried to check a lawfully owned firearm. Yes, our client followed the TSA’s guidelines prior to arriving at the airport to fly to Colorado where a new job awaited the following morning. Yes, our client made sure the firearm was stored away in a hard sided and locked cases consistent with the airline’s regulations. No, he was not remotely prepared for what would happen next.

A criminal and violent person our client was not, but instead a regular person, no different than you or me, exercising what he believed was his Second Amendment rights to possess a firearm licensed in another state. Unfortunately, despite his far from nefarious intentions, an arrest by the Port Authority Police Department and prosecution by the Queens County District Attorney’s Office was the last thing our client expected when his biggest concern to date on a flight was whether he should book an isle or window seat or have pretzels or chips with his Coke. Not a commentary on the state of firearm laws, the NRA, or Congress’ plan to allow conceal carry permits to cross state lines, this blog entry addresses how good people can unintentionally run afoul of the law and the efforts necessary to protect their good name, liberty and future.

March 28, 2017

JFK and LaGuardia Firearm PL 265.03 Arrests: Client Gets ACD Dismissal in Queens After Felony Arrest for Checking Gun at Airport

by Jeremy Saland

You are waiting in line at JFK or LaGuardia to check your bags and return home to Texas, Florida, Ohio, Arizona, Nevada, Georgia or any other state in the Union. Thinking nothing of it, you declare your firearm to the Delta, JetBlue, American or other airline agent. Not alarmed in the slightest, the agent tells you to wait…and you do just that. Shortly thereafter, police officers with the Port Authority Police Department approach you. Now becoming slightly more alarmed, if you are reading this blog entry you know exactly what happens next.

March 14, 2017

Dangerous Knives and the Intent to Use Unlawfully Against Another: Further Review of NY PL 265.01(2)

by Jeremy Saland

I have drafted many blog entries and as a New York criminal defense lawyer represented many clients accused of violating New York Penal Law 265.01, Fourth Degree Criminal Possession of a Weapon. Usually the crime involves either a resident of New York or someone visiting from outside New York City who is unfamiliar with the strict standards of New York crimes involving knives. The law is superficially clear in its application even if it is not known to most New Yorkers. NY PL 265.01(1) codifies the class “A” misdemeanor of knowingly possessing a knife that is either a gravity knife or a switchblade knife. No, this entry will not dwell on the often overreaching impact the crime has on people who use gravity knives at work, purchased them at hardware stores or Amazon.Com, or have no criminal history and completely lacked any nefarious intent. Instead, this entry will review the less common charge of NY PL 265.01(2).

January 2, 2017

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

by Jeremy Saland

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.”

December 29, 2016

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

by Jeremy Saland

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.

November 26, 2016

Box Cutters, Pocket Knives and Other Blades: Possession and Non-Criminal Intent

by Jeremy Saland

New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon, delineates the type of weapons that are per se, aka, automatically, weapons in New York based on the law no matter how you intended on using them. If you knowingly possess the weapon, then you are guilty. No, you are not merely walking into a courtroom with your criminal lawyer and pleading guilty to a misdemeanor crime that is accompanied by a sentence of up to one year in jail, but you are guilty barring certain defenses, such as challenging the probable cause for your arrest and how you were searched. This is because there is a strict liability standard at trial assuming the prosecution proves their case beyond a reasonable doubt. Looking at it slightly differently, you always have the ability to challenge an arrest on legal, factual, evidentiary, and mitigation grounds, but without any defense, a jury or judge can find you guilty if the People meet their burden.

Putting aside this strict liability standard and whether or not the NYPD and District Attorney should be prosecuting honest, hard working, regular people who legally purchase one of these gravity knifes at Home Depot, Amazon, a local sporting goods store or any other retailer having no reason to believe that in New York it is a crime to possess such a “weapon,” other types of blades and objects can be considered dangerous instruments and weapons depending on the matter they are possessed or used. The statutory authority to prosecute these crimes is also Fourth Degree Criminal Possession of a Weapon, but is found in New York Penal Law 265.01(2). This entry will address a recent court decision examining the legal sufficiency of a PL 265.01(2) arrest and prosecution in connection to the possession of a box cutter.

November 4, 2016

When Unlawful is Just Plain Awful: The Unintentional Consequences of Many PL 265 Weapon Possession Arrests in New York

by Jeremy Saland

While there may be some people on the extreme side of the Second Amendment that believe there should be zero regulation in any capacity of firearm possession and use by our government, it is likely most people agree that the laws of New York and other states serve a significant purpose and are of great value to our safety. Similarly, the New York State legislature codified crimes as they relate to certain knives and other objects they deemed “weapons” worthy of criminal prosecution by their mere possession. Again, the purpose is noble and clear. Neither a judge nor a criminal lawyer, or for that matter a prosecutor, needs to tell you that knives and firearms in the hands of wrongdoers or those who seek to perpetrate crimes demands our collective attention. That said, however, countless visitors to New York City and residents of New York and other regions of the state are arrested, prosecuted, or indicted for violations of Article 265 of the New York Penal Law when they had zero reason to believe or know the possession of their “weapon” constituted a misdemeanor or felony in New York State. This blog entry will not address legally owned firearms transported by out of state residents through LaGuardia or JKF Airports presumably pursuant to TSA guidelines in violation of New York Penal Law 265.03, Second Degree Criminal Possession of a Weapon, but crimes involving certain knives that are defacto violations of New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon. Continue reading

September 16, 2016

Dangerous Knives that are Not Gravity Knives or Switchblades: When Does Possession and Unlawful Use Violate New York Penal Law 265.01

by Jeremy Saland

It almost seems as if every day we read in the papers or see in the news that a person used a firearm to kill innocent victims. Simply, such acts are horrendous and deplorable. Law enforcement should be commended for their efforts to protect all of us. With this in mind, it is also important that the courts and criminal defense lawyers make sure that prosecutors and the police respect and maintain their burden to follow the law as well whether a violation or wrongful arrest is malicious or unintentional. While most people would argue that knives are not guns in terms of potential dangers, both have the ability to be devastating weapons. In part, this is likely why District Attorney’s Offices in New York City and elsewhere take a hard stance against gravity knife and other weapon crimes in violation of Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01. Whether you were issued a Desk Appearance Ticket or you have an extensive criminal history, do not expect to be offered any deal at your arraignment. More often than not, a charge of PL 265.01 remains in place until and if your criminal lawyer can articulate why prosecutors should deviate from their guidelines.

Why is all of the above relevant? The law in New York doesn’t distinguish between certain knives illegally purchased that are “blatantly” dangerous and those that were purchased as a tool at a hardware store. At bottom, a gravity knife is a gravity knife no matter where you purchase it. As a misdemeanor, this crime is punishable by as much as one year in jail and will stick you with a permanent criminal record upon conviction. Knowing all of this and reading through a bit of my rant, let’s now address the Penal Law and the crime of Fourth Degree Criminal Possession of a Weapon where the arrest charge of PL 265.01(2). Does the strict liability standard apply to all knives and if not, when is a “regular” knife possessed in violation of the New York Penal Law?