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

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.”

Attacking the sufficiency or legal ground of the complaint, the defendant stated the obvious. That is, if the officer recognizes the “imitation pistol” as a power drill, then it certainly is not a toy firearm or an imitation firearm.

Despite the above argument, the court zeroed in on the language of the statute that an imitation pistol is one that can “reasonably be perceived to be an actual firearm.” Even though the alleged imitation firearm was known to be a drill, could it be reasonably perceived to be a gun? The court further stated that “[t]his issue is a matter of fact, best left to the trier of fact, regarding whether “the item in question ‘substantially duplicate(d) or (could) reasonably (have been) perceived to be an actual firearm’ especially from the point of view of an observer with no opportunity to examine it more closely.” See, In re Timothy L., 29 AD3d 492, 493, 815 NYS2d 550 (1st Dept, 2006) (citation omitted).

Although the court denied dismissal and found that the information was legally sufficient, the court also recognized that a fact finder would make the ultimate decision as to whether the prosecution would prove this case beyond a reasonable doubt. Was the case legally acceptable? Yes. Would a judge or jury who determined facts agree? That would have to wait to be seen.

Regardless of the outcome in this case, there is a message that any defendant or would be weapon carrier must recognize. Prosecutors and District Attorneys in each county of New York City and beyond take weapon crimes seriously. An arrest for violating any degree of Criminal Possession of a Weapon or similar offense can result in not merely a criminal record, but a stint in “lockup.” Educate yourself on the laws of New York. Remember, what may be legal in one state may not be legal here.

To learn more about New York weapon crimes, follow any of the links above or go to the blogs and websites below where you will find extensive information, case law and statutes.

A New York criminal defense firm that represents clients in firearm, gun, knife and other weapon investigations, arrests and trials, the founding New York criminal lawyers at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office prior to establishing the criminal defense practice.

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