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.

In People v. Greenberg, 2013 NY Slip Op 50405 – NY: Appellate Term, 2nd Dept. 2013, a judge convicted the defendant for Attempted Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 110/265.01(2). The trial testimony established that the defendant made threatening statements to his neighbor and then threw a pigeon spike (whatever that is), onto the complainant’s balcony. The spike landed near the complainant, but did not strike her.

Finding the conviction of PL 110/265.01(2) to be against the weight of the evidence, the court first recognized that the plastic spike had to have been found to be a dangerous instrument which, according to section 10.00 of the New York Penal Law, is “any instrument, article, or substance, no matter how innocuous it may appear to be when used for its legitimate purpose, that is used in a manner which renders it readily capable of causing serious physical injury.” Analyzing this further, serious physical injury is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

Without going into detail, the court did not believe the record supported the crime of Attempted Fourth Degree Criminal Possession of a Weapon. Did the defendant’s actions come within a dangerous proximity of using a dangerous instrument to cause an injury? Would the outcome be different if the same plastic spike struck the complainant in the eye (without an injury) or was driven through the complainant’s shirt? The answer to these last two questions is likely yes. Here, without stating specifically, the plastic pigeon was apparently not thrown at the complainant, but on the porch, did not come within any relative proximity of harming the complainant and the pigeon was not described in greater detail as to its sharpness, size, etc. Does this legal decision mean that a plastic pigeon cannot be a weapon? No, but this decision emphasizes that manner in which an object is used and how it may cause a physical injury is critically important.

To learn about misdemeanor weapon crimes in New York, whether the offense or arrest is a violation of the New York Penal Law or New York City Administrative Code, follow the links above and below. Further, you can search the NewYorkCriminalLawyerBlog.Com for specific crimes or terms.

The New York criminal lawyers at Saland Law PC represent clients in all New York weapon crimes throughout the New York City region. Established by two former Manhattan prosecutors, Saland Law PC is located in lower Manhattan by both the State and Federal courts.

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