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.
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.
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
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?
Criminal lawyers or not, we can all argue and address the intentions and practical applications of the Second Amendment. Further, there are many of us who would agree that an AR-15 is not a reasonable weapon to have in your home or for hunting. That said, most weapon and gun crimes in New York are not of the assault rifle variety and tied to a complex Second Amendment issue. Each and every illegal firearm case prosecuted in New York may share certain traits, such as the potential for violating Second Degree Criminal Possession of a Firearm, but they are all far from the same. In the eyes of the law, however, while facts may be different, whether you possessed a revolver with the serial numbers scratched off, a glock in an ankle holster you purchased in cash from a guy you met on the street, or you are a licensed firearm owner visiting New York from Alabama, Texas, Ohio, Florida or another state, pistol, gun and weapon crimes pursuant to New York Penal 265.03 are offenses that carry a minimum of 3.5 year in prison upon conviction. Make no mistake. New York means business when it comes to illegal firearm possession and on its face an arrest for PL 265.03 is one of the most serious offenses in the New York criminal code. While everyone is entitled to a defense, police must follow proper procedure and prosecutors maintain the burden of proof, if you are an otherwise legal firearm owner arrested for a felony relating to that weapon, ensuring that you are not lumped into the same category as blatant abusers of the law who may possesses their guns for malicious purposes is critical. In the arena of a firearm arrest at JFK Airport or LaGuardia Airport in New York City’s Queens County, this could not be more true.
Most arrests involving Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01, likely involve subsection one of this crime. This offense, PL 265.01(1) is the strict liability crime. That is, if you knowingly possess any weapon and it is of the type identified in this subsection – the most common is a gravity knife or switchblade knife, but others are set forth – then you are guilty of a class “A” misdemeanor. Distinct from subsection one, but an equally serious misdemeanor crime punishable by one year in jail, Fourth Degree Criminal Possession of a Weapon, PL 265.01(2), involves the possession of any weapon or dangerous instrument with the intent to use it unlawfully against another person. So, if your possession is not automatically a crime due to the nature of the weapon and the law requires that you have the intent to use it unlawfully against another person, how do the police establish a violation of PL 265.01(2)? More importantly, even with probably cause to arrest, how do prosecutors in the Manhattan District Attorney’s Office, Queens District Attorney’s Office, Brooklyn District Attorney’s Office or any other office throughout New York City and the State prove such a case beyond a reasonable doubt? This blog entry addresses the issue in conjunction with a recent and relevant criminal court decision.
It is painfully clear that New York State does a poor job in communicating to residents of neighboring states that merely because they legally own or possess their firearm – handgun, revolver, pistol – at home, when that same firearm is brought to New York it is a crime. Not just any crime, when the weapon is loaded with the ammunition and bullets capable of being fired from the gun (they need not be physically in it), the offense in New York is a class “C” violent felony. How do I know this as a criminal defense attorney in New York who represents clients arrested at LaGuardia or JFK Airport for New York Penal Law 265.03? I know this because I routinely am asked by defendants, “I was arrested for having a loaded gun in New York at the airport, but I legally own it and I followed the TSA guidelines. What did I do wrong and what is a violent felony and mandatory prison?”
Yes, the New York criminal lawyers at Crotty Saland PC represent numerous travelers flying in and out of area airports. No, just because the firearm is unloaded when you check it at New York’s John F. Kennedy Airport (JFK) or LaGuardia Airport (LaGuardia), doesn’t mean you will avoid an arrest. For that matter, merely because you checked in advance with the TSA or your airline, whether it is American, Delta, US Air, Southwest or JetBlue, that your hard side case was the proper means to store that pistol, in no way means police with the Port Authority will let you board your plane without an arrest. As you may only know now, your registration, carry permit or concealed license in Virginia, Texas, Ohio, Illinois or California (we can throw in Arizona or any other state if it makes you feel better), won’t shield you from an arrest and prosecution from the Queens County District Attorney’s Office. However, if there is any silver lining, albeit more of a silver colored paint as opposed to the precious metal itself, if an unloaded and unregistered firearm is recovered from you after you declare and attempt to check it, the crime you will face is not the dreaded Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). As you will soon find out from your criminal defense attorney and the court, instead of a Class C violent felony, you will be booked and arraigned on the Class E felony of Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)). While Criminal Possession of a Firearm is not as crippling as an arrest for possessing a loaded revolver, pistol or gun, its all relative. Unfortunately, a recent Crotty Saland PC client learned that the consequences of a weapon and firearm arrest in Queens County for trying to check an “illegal” handgun at the airport is no less significant whether its locked and loaded or merely the weapon itself. Fortunately, however, Crotty Saland PC mounted a successful mitigation defense.
Don’t count on the TSA or your airline – Delta, JetBlue, American, United – to confirm whether or not the firearm you traveled with to New York from Colorado, Arizona, Michigan, Tennessee, Florida, Georgia or any other state in the Union is legal in New York. No official airline or TSA website will provide you that information and discuss the extent New York’s laws are in direct conflict with the Second Amendment or how your permit, license or registration in Texas, Maryland or California is not valid here. For that matter, the ticket agent, online booking website, the TSA or your airline will not explain that possessing the loaded firearm (loaded doesn’t require ammunition in the pistol or revolver) in New York without the proper permit is by default a class “C” violent felony punishable by a minimum term of three and one half years incarceration pursuant to Second Degree Criminal Possession of a Firearm (Penal Law 265.03). Certainly, you can follow the advice listed on the TSA website at your own peril. To some extent it is accurate. That is, wherever you may be flying to and from the regulations are the same. You must head to the ticket counter, have the unloaded firearm in a locked hard sided case, slap a sticker or a tag on that case, declare the firearm and ensure that no parts of the firearm are inadvertently taken with you as a carry-on onto the airplane. But that is where the TSA’s usefulness and value ends. Flying into JFK or LaGuardia (or for that matter any other airport) is one thing, but after checking the firearm at the ticket counter on your way home from one of these Queens County airports, you are going to be personally escorted to the “tombs” of Queens County Central Booking on your way to your arraignment on felony weapon charges at Queen County Criminal Court. A layover is one thing…but this is no what you expected.
Although the law does not provide for it, there is an objective difference between an possessing an unlicensed and unregistered loaded firearm and possessing an unlicensed and unregistered loaded firearm. Wait. What? In New York State, if you possess a loaded firearm outside your home or place of business and you are not registered or licensed to possess it, then you are guilty of Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03. While there different provisions and subsections relating to specified conduct, the “catchall” language often prosecuted by District Attorneys throughout New York City is PL 265.03(3). More of a strict liability crime, a murderous, violent or criminal intent to harm, menace or threaten another person is not required. Merely, if you knowingly possess that firearm and it is loaded, a conviction will land you in prison for a minimum of three and one half years whether you are a physician, steel worker, or a stay-at-home mother of three. So, why do I say that there is an objective difference between an possessing an unlicensed and unregistered loaded firearm and possessing an unlicensed and unregistered loaded firearm? Simply, from a mitigation perspective, if you are toting around a loaded firearm with a bullet in the chamber while walking the streets of New York as opposed to following TSA procedures at LaGuardia or JFK Airport and declaring your otherwise legally registered or licensed firearm with the airline while its secured and broken down (ammunition not inside the firearm) in a hard sided case, there should be a vast difference. Fortunately for a recent client of Crotty Saland PC, our New York criminal lawyers were able to convince prosecutors of just that and were not merely successful in reducing the Second Degree Criminal Possession of a Weapon from a felony to a misdemeanor or even a violation, but to an ultimate dismissal if our client does not get rearrested over the next six months.