New York Criminal Lawyer BlogMost 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.
Articles Posted in Weapon Possession
Another Felony Second Degree Criminal Possession of a Weapon Gun Arrest at JFK Airport: Another Non-Criminal Result for Saland Law PC
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?”
Airport Criminal Possession of a Firearm Arrest, New York Penal Law 265.01-b(1), Ends in Six Month Dismissal
Yes, the New York criminal lawyers at Saland Law 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 Saland Law 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, Saland Law PC mounted a successful mitigation defense.
I was Arrested at JFK and LaGuardia Airpots for a Loaded Firearm: One Dismissal and Two Non-Criminal Resolutions
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.
Queens CPW 2 Ends in ACD and Future Dismissal: Client Avoids Criminal Record After LaGuardia Airport Arrest for NY PL 265.03
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 Saland Law 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.
Client Arrested in New York with Two Unlicensed Firearms and Hundreds of Rounds of Ammunition Receives ACD Dismissal & “Nullified” Arrest
New York City’s JFK and LaGuardia airports see their fare share of criminal activity. The airports are crawling with federal, state and local law enforcement ready to swoop down at the first sign of some wrong doing. One of the seemingly growing crimes that the Port Authority Police Department, TSA and airline ticketing agents seem to be ready, willing and able to pounce on is the crime of Criminal Possession of a Weapon. More specifically, the crime that is routinely prosecuted is Criminal Possession of a Weapon in the Second Degree pursuant to New York Penal Law 265.03. Obviously each fact pattern is different, but the themes generally run the same. You are a legal or registered firearm owner in California, Florida, Texas or some other state. You are visiting New York City , Manhattan, Queens, Brooklyn, Long Island, the Hudson Valley or a neighboring state such as New Jersey, Connecticut or Pennsylvania. Nobody stopped you from coming to this jurisdiction or advised you that you couldn’t bring your revolver, pistol or other gun to the State of New York. Why would you expect anything would be different when you packed up the gun, separately carried the ammunition and checked your firearm at the airport for your journey home? Why? Well, sadly the answer is clear and now you need a New York firearm lawyer and criminal defense attorney to mitigate your “wrongful” conduct from a statutory violent felony with mandatory incarceration to something that will not destroy your future or livelihood.
JFK Airport Firearm Arrest Ends in Non Criminal Violation: Accused Avoids 3.5 to 15 Years on NY PL 265.03 Conviction
Who ever thought legally owning a firearm, licensed handgun, revolver or other pistol would land you in jail? Your airline carrier didn’t tell you when you called or searched online. JetBlue, Delta or American airlines didn’t stop you when you checked it before you flew into New York City. There was nothing on a website dedicated to LaGuardia or JFK Airports that properly advised you. Even the TSA website proved useless. Believing you were compliant with the criminal and firearm laws of New York State, what did you do? You got arrested for checking your broken down, unloaded firearm properly locked in a hard side case before boarding your flight home. Sadly, the nightmare began when the gate agent called the Port Authority Police, without giving you any indication of your wrongdoing, as you waited with friends or family to get your boarding pass. Never suspecting you would need a New York firearm attorney or New York criminal defense lawyer, your life went from being a “regular” person to an accused criminal arrested and charged with violating New York Penal Law 265.03. Twelve, fifteen or even twenty four hours after sitting in Central Booking, you finally saw a Criminal Court Judge in Queens count who may even have set bail on your charge of violating Second Degree Criminal Possession of a Weapon. Whether you were released or not, the three and one half to fifteen years you now face is rightfully terrifying.
Federal Firearm and Weapon Crimes: The Dangers of Illegal Gun Possession Beyond New York State Firearm Offenses
For years, the New York City Police Department has run the “Cash for Guns Program” in which it will pay $100 to any individual who turns in any handgun, revolver, semiautomatic and automatic pistols, sawed-off shotguns, or assault rifle. The police will not ask any questions about the weapon or ask for any identification, as the identity of every person will remain anonymous.
Over the years, thousands of guns have been taken off the streets of New York City. Even though the program promises anonymity, that does not always happen. Take the case of Robert Lee Miles. Back on January 19, 2011, Miles walked between subway cars and was stopped by police, as that was a violation of New York City law. The police frisked Miles and recovered an unloaded revolver in his waistband. As he was being arrested, Miles told the police that a friend gave him the gun so that Miles could collect money through the Cash for Guns Program and that he was on his way to delivering the gun to the Police Station to collect the $100.
New York PL 265.01 & Switchblades: Conclusory Language by a Police Officer May not Sustain a Criminal Court Complaint
Per se crimes are dangerous offenses in New York. These crimes, and the arrests that result, are based not on malicious or intentional violations of the law, but often on otherwise harmless and ignorant actions. One of the most common strict liability and per se crime in the New York Penal Law is that of Criminal Possession of a Weapon in the Fourth Degree, pursuant to NY PL 265.01. Although there are many different types of items or objects that are “automatic” weapons (by automatic we are not speaking of a firearm, but automatic in the sense that their mere possession is a crime regardless of how the object is being used), the most common involve possession of gravity knives. In its simplest terms, these knives open with the force of gravity when flicked from the wrist. It is fairly routine that tourists to New York City or even residents of Manhattan, Brooklyn or Queens are arrested and either fully processed before a judge or given a Desk Appearance Ticket (DAT) after a police officer observes a clip on the accused’s pocket or or sees the blade during a car stop. Sadly, most of these individuals legally purchased these knives online or at a chain store outside of New York City or New York State.
While gravity knife arrests according to New York Penal Law 265.01(1) rank the highest by volume, other per se weapons are the subject of the same prosecutions. Arguably, though less common, switchblade knives pose a more serious risk. The reason for this is obvious. Still a violation of PL 265.01(1), Fourth Degree Criminal Possession of a Weapon, switchblade knives are not sold by Home Depot, a fishing store or other similar establishments. Gravity knives are. Right or wrong, many prosecutors, judges and police officers perceive switchblade knives are evidence of some potential criminal act. Because of the seriousness of the allegation and the potential long term implications of a criminal conviction beyond spending time in jail, it is critical to examine the many defenses that may be available for an arrestee. One such defense is to review the complaint against you to determine whether the allegations as set forth in the accusatory instrument (the paper charging you is called an information) is legally sufficient.
Raymond Felton’s Post Arraignment Update: What’s Next for the Knick ‘Baller & His Third Degree Weapon Charge
With a timeout on the court and Raymond Felton out of jail heading back to the hardwood, it is a good time to reassess the events of the first quarter and what we can expect over the next three. Clearly, there is no better time then now to examine where Felton’s firearm and weapon charges may head over the next few months. As a preliminary matter, and of great significance, Felton avoided the charge of Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03. Despite being arrested for this offense, Manhattan prosecutors recognized for now (charges can always be added later) that the “C” felony would be a difficult lift. That is, Assistant District Attorneys likely realized that it would be no easy task proving beyond a reasonable doubt that Felton intended to use the weapon unlawfully against Ariane Raymondo-Felton (see my earlier entry and accompanying analysis).
So what are the official arraignment crimes and what should we expect going forward?
The Crimes and NY Penal Law Offenses
The top count that Felton now faces is Third Degree Criminal Possession of a Weapon. This crime, New York Penal Law 265.02, is a “D” felony. There is a presumptive mandatory minimum sentence of two years and a maximum of seven years if Felton is convicted. For perspective, Plaxico Burress faced a charge of New York Penal Law 265.03, Second Degree Criminal Possession of a Weapon. That crime carries a minimum mandatory sentence of three and one half years and a maximum of fifteen years in prison.