You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Saland Law PCs earlier entry on weapon possession.
The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law い 265.02, 265.01 ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”
The Court answered the question of knowledge by finding that “[a]lthough the statute includes no express element of mental culpability and the offense has often been referred to as a crime of ‘strict liability,’ existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon.”
Even beyond the Court’s decision that knowledge is an element of the crime, a review of the jury instructions for the charge of 265.01 as it relates to switchblade knives further illustrates the knowledge requirement. A person is guilty of violating this statute when “that person knowingly possesses any … switchblade knife.” The jury charge also states that “[a] person knowingly possesses [a switchblade knife] when that person is aware that he or she is in possession of such [switchblade knife]” (CJI 2d N.Y. Penal Law � 265.01 ).
Although the First Department’s apparently requires that some form of knowledge be established for a conviction of this offense, each case needs to be examined on an individual basis. Whether there is a valid defense or not, your criminal counsel must do his “homework” and ascertain the strongest approach to protecting your rights. This case and others like it may be that defense you are looking for.