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.”
In People v. Steven Aponte, 074099C-2010, NYLJ 1202567882385, at *1 (Sup., BX, Decided August 14, 2012), officers observed a bunch of young men in the late evening hours outside a club. More specifically, the men had gathered on the corner and were behaving disorderly in that they were blocking “pedestrian traffic” and being boisterous. After being asked to disperse and move away, the men refused and may have had some words with the officers or questioned why they were required to do so. Ultimately, the officers decided to issue the defendant a pink summons for Disorderly Conduct, but had the defendant stand against the wall where he was frisked and checked for weapons due to officers’ safety concerns.
Although the criminal lawyer defending the arrestee sought for suppression of the box cutter recovered from his client (the defendant also stated in substance he had the box cutter due to the dangers of the streets) because there was no reasonable suspicion of criminal activity and the officer was merely issuing a summons as opposed to making an arrest, the court disagreed. Instead, the court found that merely because a police officer decides to issue a summons where he is exercising his discretion does not mean that he or she cannot conduct a frisk for his or her safety should it be reasonable. According to the Court, “The High Court teaches that a stop arising from a violation does not ordinarily justify a frisk, but does permit a limited pat down for a concealed weapon because there a defendant acted in an uncooperative and suspicious way.”
In Aponte, the defendant was one of a few men, clubs were near by, it was late in the evening and there was objectionable behavior. While obviously each case will require its own analysis by courts and criminal defense attorneys, the relevant portion of this case is as follows. For the police to make a lawful arrest for Criminal Possession of a Weapon and for courts to uphold the recovery of those weapons, the actual weapon need not be readily apparent or obvious. Even where a summons is issued and no criminal behavior is overtly displayed, the police may still be able to articulate legal grounds to search your person. A review of the actual decision is a worthy read for defendants an attorneys alike.
To read more about New York weapon crimes from misdemeanor gravity knife and switchblade possession to crimes involving the felony possession of firearms, revolvers and other loaded handguns, review Crotty Saland PC’s main Criminal Possession of a Weapon information page. In addition to the specific links above, you will find the analysis of numerous legal decisions and statutes that currently construct and interpret New York’s Penal Law.
Crotty Saland PC, a New York criminal defense firm, has successfully represented numerous clients across the spectrum of arrests involving alleged weapon crimes. Prior to establishing the criminal defense practice, the two founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office.