Weapon Possession

April 29, 2013

All “Weapons” are not Equal: Understanding Subsection Two of Fourth Dgree Criminal Possession of a Weapon (NY PL 265.01(2))

New York State is on tough place to face a criminal charge. Yea, there are always concerns with New York’s “strict liability” crimes where knowledge, as opposed to intent to commit a crime, is a sufficient basis for an arrest and conviction, but in the realm of New York City and the greater New York State, there are other seemingly innocent actions or items that can form the basis of a criminal arrest. Unlike possessing a gravity knife or switchblade knife where it matters not whether the knife was to be used to cut cardboard or human flesh (see New York Penal Law 265.01(1) – Fourth Degree Criminal Possession of a Weapon), other weapon offenses relate specifically to how you used the item or object in question. So…that pillow, iphone or sneaker may be just as dangerous in the eyes of the law as a set of brass knuckles. Simply stated, you are guilty of Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01(2), if you possess a dangerous or deadly instrument with the intent to use that instrument against another person in an unlawful manner.

To help better understand the misdemeanor weapon crime of NY PL 265.01(2), the following case is a good place to start. While no criminal lawyer would expect that you, as an accused person charged with a misdemeanor offense and given a Desk Appearance Ticket (which does qualify as an arrest, by the way), will read all the relevant statutes and cases, educating yourself prior to speaking to a criminal defense attorney will certainly land you in a better place.

April 23, 2013

NYC Firearm & Gun Arrests: Can You Get Your Firearm or Gun Back from the Police if it was Seized After Your Arrest at JFK or LaGuardia Airports

by Jeremy Saland

Among many concerns that someone arrested for possessing a loaded (or unloaded) firearm, pistol, revolver or similar gun at a New York City airport may face, is how, if at all, the firearm can be returned subsequent to a resolution of the criminal case. Whether you are charged with a misdemeanor gun possession charge at New York’s JFK Airport for possessing an unloaded firearm without any ammunition (New York Penal Law 265.01 – Criminal Possession of a Weapon in the Fourth Degree) or you are arrested for a felony gun possession at LaGuardia Airport for possessing a loaded firearm (the bullets need not actually be in the gun) and charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), the likely answer to this questions is fairly clear. As part of the potential plea, offer or even non-criminal disposition, the Queens County District Attorney’s Office is not going to return that firearm back to you even if it was lawfully owned, registered and permitted in your home state. A case directly on point is the Matter of the Application of Shahin Khoshneviss v. the Property Clerk of the New York City Police Department, 2010 NY Slip Op 30299(U).

In Khoshneviss, the former defendant sought the return of his .45 caliber firearm and magazine clip that the New York City Police Department vouchered. The NYPD came into possession of the firearm after Port Authority Police Officers arrested him at LaGuardia Airport. Like many “regular” and law abiding citizens, Khoshenviss had declared his firearm for transportation on his flight to California from New York City. Ultimately, prosecutors charged Khoshneviss with Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The former felony is punishable by a minimum of three and one half years in prison while the latter misdemeanor is punishable by no more than one year on Rikers Island. Fortunately, Khoshneviss was not convicted of either a misdemeanor or felony, but pleaded instead to a non criminal violation of Disorderly Conduct.

March 31, 2013

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

by Jeremy Saland

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.

March 21, 2013

NYC Weapon & Imitation Pistol Crimes: Understand the Administrative Code and “Reasonably Perceived” Language

by Jeremy Saland

Not all of New York’s weapon crimes are located or found in the New York Penal Law. Certainly, a review of Article 265 of the New York Penal Law will reveal the most serious gun and firearm crimes such as Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03) and the “gravity knife crime” of Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01), but the New York Administrative Code houses many other weapon offenses. Once such misdemeanor crime, an offense that will leave you with a permanent criminal record upon conviction, is AC 10.131(g)(1). According to AC 10.131(g)(1), you are guilty of Unlawful Sale, Possession, or Use of an Imitation Pistol when if and when you “sell(s) or offers to sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived to be an actual firearm.” This crime carries a possible and potential sentence of up to one year in jail on the world class, Starwood resort of Rikers Island.

This blog entry will assess and briefly address the crime of AC 10.131(g)(1) in the context of possessing an imitation pistol. In People v. Ronald Johnson, 2012BX068528, NYLJ 1202591137115, at *1 (Crim., BX, Decided February 19, 2013), an officer from the New York City Police Department in possession of a “black power drill.” The officer observed the “weapon” in the defendant’s waistband. According to the complaint, the officer stated that “said power drill resembled a real .9mm semi-automatic pistol, in that, it was all black in color, and the barrel was not closed with any material.”

March 2, 2013

Gun Arrest JFK Results in ACD Dismissal: New York Criminal Possession of Firearm Arrest Results in No Record

by Jeremy Saland

In the best of all scenarios, the New York criminal defense attorneys and former Manhattan Assistant District Attorneys at Saland Law PC are proud to announce the granting of an Adjournment in Contemplation of Dismissal (commonly called an ACD) on behalf of a client arrested for Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). In a not so atypical set of circumstances, Port Authority Police Officers arrested our client as he attempted to check his legally owned and licensed out-of-state handgun with airline ticket agents at JFK airport (the same would have occurred at LaGuardia Airport). Assuming he was compliant with the law prior to his arrest for NY PL 265.03, our client secured the firearm in a hard side case, removed the ammunition from the pistol and voluntarily advised the airline representatives of his possession. Unfortunately for our client, ignorance of the law is no defense for a Weapon Possession crime and our client faced the wrath of New York’s strict firearm laws.

Whether or not you agree with New York’s gun laws and possession statutes, compliance in one state does not mean compliance in New York. Where your possession would be non criminal elsewhere, your possession of a legally owned and registered out of state firearm in New York City or an airport in Queens becomes a class “C” felony if the gun is loaded. Remember, loaded in the eyes of the law is much more liberal and does not require bullets or ammunition actually in a chamber, cylinder, cartridge, etc.

February 7, 2013

Limiting the a New York Police Officer’s Right to Inquire about Weapon Possession in a Vehicle: People v. Garcia

by Jeremy Saland

There is no denying that armed offenses and mere weapon possession are some of the most serious crimes in the New York Penal Law. Its equally clear that police officers in New York should be able to protect themselves from potential danger when they stop a person who committed a crime or may be perpetrating a New York gun crime. An interesting question, however, is when a police officer can make an inquiry and ask a passenger or driver of a vehicle if he or she has a weapon such as a firearm, revolver, gun, gravity knife or switchblade. A recent decision by the top court in New York, the Court of Appeals, clearly explains the rule when this question can be asked. Whether you are a New York criminal lawyer, Assistant District Attorney or judge in a county, criminal or local court, People v. Garcia, No. 205, NYLJ 1202581900488, at *1 (Ct. of App., Decided December 18, 2012), is a critical case to read and fully understand.

In the words of the Court, Garcia’s appeal asked the judges to “determine whether a police officer may, without founded suspicion for the inquiry, ask the occupants of a lawfully stopped vehicle if they possess any weapons..” There, the police pulled over the defendants’ vehicle because of a nonworking headlight. In addition to Garcia, the driver, four other people were in the car. The three backseat passengers looked nervous, “were a little furtive,” kept “looking behind,” and “stiffened up.” Asked for his license and registration, Garcia complied. Shortly thereafter, the officers asked if anyone possessed a weapon at which time one of the passengers admitted to possessing a knife. After ordering everyone from the vehicle, what appeared to be a firearm (it was an air pistol) was found wedged between a seat (it was visible with a flashlight). After waiving his rights to an attorney, Garcia admitted the air gun was his pistol.

November 30, 2012

New York Gun Possession Lawyers Get Dismissal in Airport Loaded Firearm Possession Arrest

by Jeremy Saland

There are few things worse than believing you are compliant with the law, but quickly learning you are not. Even more concerning, when the crime involves the possession at an airport of a “loaded” firearm or gun that you believe is properly secured with the ammunition removed, things can look bleak very quickly. Unfortunately, this is the exact scenario a client of the New York criminal lawyers at Saland Law PC faced.

Our client, an individual involved in marketing with publicly known clients, had visited New York for only a few days. An avid sportsman, in terms of going to the range, our client brought his pistol to New York City during his stay. Although our client never used the weapon and kept it in a hard sided case with the ammunition stored separately inside, our client unwittingly violated New York Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree. In fact, while a reasonable person would believe he or she was in compliance with the law and kept the gun unloaded, the New York criminal law has much more liberal definition of when a weapon is armed. That is, if the weapon is capable of being loaded, such as where the bullets are in the same carrying case, the firearm is loaded for the purpose of a New York weapon arrest and prosecution. As a result, when our client checked his bags and notified airport staff at John F. Kennedy (JFK) Airport (the same would occur if this transpired at LaGuardia Airport) that he had an unloaded firearm, he was detained and arrested.

November 3, 2012

Using a Belt to Strike a Child: Can Your Actions Constitute Assault, Endangering the Welfare of a Child & Weapon Possession?

by Jeremy Saland

Any crime that involves a child is often given extra scrutiny by prosecutors, judges and even New York criminal lawyers. Compounding matters, if that crime also includes allegations of Assault and Criminal Possession of a Weapon, there is a real concern for the accused whether or not the complaint is baseless or completely accurate in its totality. Not only are Endangering the Welfare of a Child (New York Penal Law 260.10), Third Degree Assault (New York Penal Law 120.00) and Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01) misdemeanors punishable by up to one year in jail (Rikers Island or the Westchester County Jail, for example), but where the crime involves a family member, Orders of Protection can bar you from your home and from any contact with your family.

In People v. Jose Barreiro, 2012KN013315, NYLJ 1202576305750, at *1 (Crim., KI, Decided October 18, 2012), the defendant was charged with multiple crimes including those listed above. Whether the purpose of Barreiro’s alleged actions was to ultimately discipline his child or merely to just hurt him, is of potentially little consequence. It was alleged that the defendant struck his twelve year old son with a belt. More specifically, Barreiro struck his son in the legs causing brusing and swelling. The complaint further claimed that these actions caused substantial pain to the child and that the child feared future physical injury.

August 23, 2012

Suppressing a Box Cutter, Gravity Knife or Other Weapon in New York Courts: Does it Matter if the Basis of Your Search was Non-Criminal?

by Jeremy Saland

Criminal Possession of a Weapon in the Fourth Degree, otherwise known as Fourth Degree Weapon Possession, is a fairly common misdemeanor arrest charge throughout the boroughs of New York City and the rest of New York State. Beyond an arrest for NY PL 265.01, the police can issue a NYC Desk Appearance Ticket (DAT) or a pink summons for other knife or weapon based violations and crimes. One routine way in which New York weapon possession lawyers and criminal defense attorneys see arrests for Criminal Possession of a Weapon and crimes relating to New York Penal Law 265.01, is where an officer claims he or she sees a “clip” partially inside and outside an arrestee’s pant pocket. This observation gives the New York City Police Officer who ultimately makes the arrest for weapon possession (gravity knife, switchblade, etc.) the grounds to approach the arrestee and investigate further.

As frustrating as it may be when you are the target or subject of such an NY PL 265.01 arrest, Desk Appearance Ticket or summons in Manhattan, Brooklyn, Queens, etc., what if no clip is evident? What if there is no bulge outlining what appears to be a knife – switchblade, gravity or otherwise – in your pocket? This blog entry will address a recent Bronx criminal court decision addressing whether or not a court will suppress a weapon recovered by the police where the basis of the recovery is not due to observations of that weapon, but secondary to disorderly behavior of the arrestee. In more legal terms and as stated by the Court, the issue is “whether the stop, question and frisk search violates the Fourth and Fourteenth Amendments to the United States constitution and Article 1, [section] 12 of the State Constitution when the activity initiating the frisk is a violation.”

August 19, 2012

Criminal Possession of a Weapon Defense: Does the “Car & Automobile Presumption” for New York Firearm & Gun Possession Apply if the Weapon is Inoperable?

by Jeremy Saland

There are few crimes that prosecutors in New York take as seriously as those involving the illegal possession of firearms, revolvers, pistols, glocks and other weapons. In fact, not only is it an “automatic” felony in New York to possess a loaded firearm outside your home or place of business without a permit to do so, but even if you are lawful gun owner and permit holder in another state, you must have permission from New York to possess that firearm here. Should you fail to secure a New York permit (there are different types of permits that allow certain types of possession), you can and likely will be arrested for Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03). This crime, a “C” violent felony, is punishable by a mandatory minimum term of 3.5 years in a New York State prison and a maximum term of 15 years. This law holds true whether or not you are trying to check your firearm properly at JFK or LaGuardia Airports on a flight out of New York City (see recent cases prosecuted by the Queens County District Attorney’s Office) or you are merely trying to do the “right thing” by “turning in” your gun at Ground Zero in lower Manhattan upon realizing that your possession is not legal or proper (see recent cases prosecuted by the Manhattan District Attorney’s Office). While the important and commendable intent and purpose of the criminal statutes found in Article 265 are there to curb illegal gun sales, gun trafficking and gun violence, it unfortunately also gives District Attorney’s Offices the ability to hammer (or threaten to do the same) otherwise law abiding citizens who are not familiar with New York’s strict gun laws.

Colloquy aside, whether you are a resident of New Hampshire riding in a vehicle with another person who legally owns a firearm in that state or you are a passenger in a vehicle with someone who has a defaced firearm that he or she plans on using in a “stick up,” can you be charged for possessing that firearm even though it was not on your person or in your actual physical possession? The general answer to this question is found in a New York Penal Law 265.15(3). The presence in an automobile (with some exceptions) of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found (again with some exceptions such as the firearm being found on the person of another passenger or driver). Taking this question or issue a step further, what if the firearm found in that vehicle is inoperable? Does the presumption still apply to guns that do not work? The answer appears to be that it does not.