Articles Posted in Weapon Possession

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.

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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.

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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.

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POST ARRAIGNMENT UPDATE: It appears that despite the arrest charge of PL 265.03, the Manhattan District Attorney’s Office recognized, at least for now, that they cannot prove this “C” felony beyond a reasonable doubt. Whether it was due to the credibility of Felton’s wife or not, I am not privy (maybe they read my blog!). However, now the top charge is Criminal Possession of a Weapon in the Third Degree, New York Penal Law 265.02. Although there is still significant exposure, Felton faces from two to seven years in prison (a presumptive two year minimum).

Raymond Felton, the New York Knicks point guard arrested for possessing a loaded firearm, is no Plaxico Burress. Sure, both athletes allegedly possessed a loaded gun in Manhattan without a license and face/faced the crime of Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), but not all crimes are created equal. While Burress served his time in prison on the strength of a CPW 2 case, Felton may be able guide himself clear of the top count.

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At no point did you believe that your flight home from New York City’s JFK or LaGuardia Airport would leave you stranded in New York. No, not stranded on the tarmac or in the airport, but in a jail charged with Second Degree Criminal Possession of a Weapon (New York Penal Law 265.02). You thought you were adhering to the TSA’s rules. You even went online or called your airline to determine how to properly transport your firearm, pistol or revolver. According to JetBlue, Delta, American, or any airline, the transportation of your weapon must comply with certain requirements – requirements you thought you were complying with. Unfortunately, you didn’t know that if you have a firearm or gun that is not registered in New York (NYC has its own registration requirements greater than those in the State of New York) and you go to an airport in Queens (JFK or LaGuardia), you are in possession of an illegal weapon.

Some would argue that your second amendment right is kicked to the curb when you enter the boundaries of New York while others would argue that the legislature and citizens of the Empire State don’t want or need your guns flooding their borders. Regardless of your perspective on the law, “it is what it is.” When you check your hard sided case with an agent and you advise that the weapon is not loaded because the bullets or ammunition are not in the gun, he or she smiles back to you and tells you to wait. In only a matter of minutes you are handcuffed and arrested for Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03) and potentially the lesser (but a still significant and crippling felony) of Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)).

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If you could not merely search the NewYorkCriminalLawyerBlog.Com, but review transcripts from suppression hearings and examine New York criminal court complaints, it is likely that you would find a very common theme amongst individuals arrested for possessing illegal knives in New York pursuant to New York Penal Law 265.01(1) (often drafted as PL 265.01 on a New York City Desk Appearance Ticket). Whether the knife in question is a gravity knife opening with the force of gravity or a switchblade knife, it is “comically” common how often the police assert they observed a knife clip on the outside of a pocket, stopped that person and then removed the knife in question. While the stop and search may be legal, and therefore an arrestee’s basis for challenging his or her stop and search may fail, a recent decision may be very helpful in combating what some may argue is the over policing, and the ultimate over prosecution, of individuals who unknowingly possess certain illegal knives. Although technically illegal, many of the people arrested and given a DAT for PL 265.01 are accused of this crime after they legal purchased the blade from a reputable and established company without any belief that they could ultimately be committing a crime in New York.

In an appeal from Queens County Criminal Court, People v. Victor M. Cruz, 2011-990 Q CR, NYLJ 1202597502421, at *1 (App. Tm., 2nd, 11th, 13th, Decided April 8, 2013) directly addressed whether the clip of a knife, without any other indicia the potential contraband is a gravity knife, is sufficient to give the police the authority to stop and search a person for violating the class A misdemeanor Criminal Possession of a Weapon in the Fourth Degree pursuant to NY PL 265.01. In Cruz, the defendant was charged with with two counts of Fourth Degree Criminal Possession of a Weapon among other violations of the law. According to the record, the police pulled the defendant over for a traffic infraction and asked for the standard license and registration. The police further asked if the defendant had any weapons which he responded to in the negative. Looking into the vehicle, the arresting officer observed a clip of a knife attached to the defendant’s pant pocket.

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If you are reading this blog entry regarding a gravity knife arrest in New York City or any other jurisdiction or municipality, there is a good chance you were stopped innocently walking down the street or driving your car and the police saw the knife’s clip outside your pocket. After stopping you, the police flipped the knife around, flicked their wrists and tried as hard as they could (it may have been fairly easy or awfully difficult) to open the knife with the use of gravity. Whether they did it on their first attempt or the police were only successful after numerous tries, the officers placed you under arrest, finger printed you and charged you with possessing a gravity knife in violation of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(1). If it was your first offense and you have no criminal record (and you can provide a local address in the New York City area), the police may have given you a NYC Desk Appearance Ticket with the top offense charge of PL 265.01.

Assuming you consult with a criminal attorney or New York City weapon defense lawyer for the Fourth Degree Criminal Possession of a Weapon DAT, you will likely be asked numerous questions about the legal basis of your stop as well as what transpired when the police tested the knife. Ultimately, however, when you go before a judge for your arraignment (this is where you are formally accused and advised of your criminal arrest charges), the legal work of your attorney will really begin. Certainly your lawyer may want to ask to see the actual knife (it will take some time), but within the four corners of the complaint against you there may be fertile ground for dismissal. One potential basis is how the actual complaint is drafted. It must sufficiently establish a “knife which has a blade [that] is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” For the purpose of this blog entry we will briefly address how the police establish that a knife in question is in fact a gravity knife as defined by the New York Penal Law. More specifically, if the police merely test the knife, but do not establish their training and experience in identifying these weapons, will the complaint be facially sufficient? After all, how can you affirmatively test something that you have no training or experience in identifying or handling?

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Not mean to be a political statement in any way, the following is arguably a simple “fact.” Prosecutors in New York City and the surrounding suburbs have little sympathy and compassion for individuals arrested for firearm and weapon crimes. This assertion can be attributed to those crimes where a gun, pistol or other weapon is stolen and defaced or where the gun in question is legally registered, but not within the borders of New York City or New York State. The message is clear from these District Attorneys. Do not bring unlicensed firearms into their respective jurisdictions even if it is legally owned and carried elsewhere. If you do, you will be arrested and prosecuted for a wide range of potential felony crimes including Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), Criminal Possession of a Weapon in the Third Degree (New York Penal Law 265.02), Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law 265.01)and the newest member of the “illegal firearm family,” Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)).

Prior to the enactment of NY PL 265.01-b(1), Criminal Possession of a Firearm, in order for an illegally possessed gun or pistol to be bumped from a misdemeanor to a felony crime, the firearm had to be possessed outside the home or place of business and be loaded (it must always be operable as well). If it was not harsh enough that New York law deems a gun loaded even when ammunition may not be inside the weapon, the New York Penal Law has created an even more sever punishment for possessing a firearm without any ammunition at all. To be very clear, if you possess a gun or a pistol in New York without a permit, you will no longer have the “luxury” of facing only a misdemeanor crime. Instead, your knowing possession of the illegal and operable firearm is an “E” felony and carries a sentence by as much as four years in prison. Again, it makes no difference in the eyes of the law if the firearm is stolen or one that you legally owned in Iowa, Alabama or California because if you do not have a license or permit in New York (or New York City), your possession is a violation of the law.

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Everyone is scared of guns. After all, some horrific incidents have corroborated why many lawmakers in New York believe the strict firearm laws of the New York Penal Law are necessary. While there is little doubt that firearms in the wrong hands are overwhelmingly dangerous and laws must be enacted and enforced to protect the public and prevent the misuse of weapons, a blanket fear of firearms does not necessitate over zealous prosecutions. Just as the owner of a lawfully registered out of state firearm can be charged with a felony for attempting to legally check his weapon at a NYC airport (JFK Airport, for example), other individuals may be charged with weapon crimes that really are not consistent with the hyper-technical conduct of the accused.

In People v. Evans, 2013 NY Slip Op 1950 – NY: Appellate Div., 4th Dept. 2013, a judge convicted the defendant for Assault in the Second Degree where the crime was based in the reckless possession of a weapon. There, the gun in question was a saw offed shotgun that accidentally misfired and struck another person. Pursuant to New York Penal Law 120.05(4), it is punishable by as much as a seven years in prison if you “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” The question before the Appellate Court was not whether the possession of the weapon in and of itself was illegal, but whether or not it was used in a reckless manner resulting in the serious physical injury.

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With the amount of blog entries I have recently drafted relating to New York weapon crimes including those involving New York firearm laws and knife arrests, one would think that the criminal lawyers at Saland Law PC spend their days solely defending clients against misdemeanor (New York Penal Law 265.01) and felony (New York Penal Law 265.02 and 265.03) weapon arrests. While we certainly do our best to keep ourselves up to date on the ever changing laws and regulations involving New York weapon crimes, this area of law is remains a significant piece of our criminal defense practice. Irrespective of how often we represent clients accused of possessing legally owned firearms at JFK or LaGuardia airports or gravity knives on the streets of NYC, there can be little dispute that many weapon statutes in New York are enforced with greatest of intentions, but often against honest, “clean” and law abiding people.

In a recent example of a “regular Joe” being ensnared in a New York weapon crime, Saland Law PC represented an attorney accused of possessing a knife with a blade exceeding four inches. Further, when arrested with possessing this knife, both the police and prosecutors at the District Attorney’s Office charged our client with violating New York Penal Law 265.01(2). Not the “per se” section of the New York Penal Law, this subsection of Fourth Degree Criminal Possession of a Weapon makes it a crime (in substance) to possess any dangerous instrument (it has a very liberal definition) unlawfully against another person. Keep in mind…under the right circumstances a can of Red Bull or your backpack could be considered a dangerous instrument.

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