When Queens criminal lawyers think of the “no fly list”, they very well might think of something other than individuals the government doesn’t want in or around an airplane or airport, whether JK, LaGuardia, or elsewhere. Instead of a list consisting of people, criminal defense attorneys have a different list – one consisting of Penal Law 265.01, 265.01-b(1), and 265.03, among other weapon crimes codified in Article 265. If you are unfortunate enough to find yourself under arrest by the Port Authority Police, your Desk Appearance Ticket (DAT), or the criminal court papers in the event you unlawfully possessed a firearm and are hauled into Central Booking, will reveal your particular charges. Ranging from misdemeanor Fourth Degree Criminal Possession of a Weapon, Penal Law 265.01(1), for batons, knuckles, and switch blades, to the far more serious Second Degree Criminal Possession of a Weapon, Penal Law 265.03, for a loaded and unlicensed firearm, remember…ignorance of the law is no defense.
The “No Fly List” Crimes: New York Penal Law Article 265
No, I am not your attorney, nor am I giving you advice, but suffice to say that before you board your plane at JFK or LaGuardia, not only should you double check that you brought your toothbrush and enough underwear for your visit to the Empire State, but you left behind any object, device, or item that may be construed as a weapon. Starting with misdemeanors and progressing to felonies, the following are the three most common offenses both NYC residents and out-of-state visitors alike find themselves arrested for, given a DAT, or, far worse, held up to 24 hours in Central Booking
Criminal Possession of a Weapon in the Fourth Degree: Penal Law 265.01(1)
Whether or not you possess one of the following solely for your own protection, because you think it is neat to have, or you are actually looking to maliciously hurt someone, understand that your intent is of no consequence in the eyes of the law. Simply, if you knowingly possess an electronic stun gun, a pilum ballistic or metal knuckle knife, billy, bludgeon, plastic or metal knuckles, or some specified weapons such as a wrist-brace style slingshot, you are guilty of this class “A” misdemeanor of Penal law 265.01. If convicted, you would face as much as one year in jail. Even worse, if you have a prior criminal record, prosecutors can elevate your crime to the class “D” felony of Penal Law 265.02(1). This latter offense will expose you to as long as seven years incarceration.
Criminal Possession of a Firearm: Penal Law 265.01-b(1)
The “-b(1)” may seem like an insignificant addition to the misdemeanor above, but any experienced criminal law attorney will dissuade you of your misunderstanding quite quickly. In fact, Penal Law 265.01-b(1) is a class “E” felony that carries with it the potential of one to four years in prison. Whether or not you are licensed out of state or have the proper permits where you reside, if you checked your unloaded firearm with your airline, and you are reading this after the fact, you have likely already been charged with this offense. Keep in mind that merely because your pistol, revolver, or other gun does not have ammunition in the chamber or in a clip, for example, if you also have bullets in the case when you check your gun, your firearm is considered loaded as a matter of law. In such a situation, the class “E” felony may increase to a far more serious class “C” felony.
Criminal Possession of a Weapon in the Second Degree: Penal Law 265.03
Often the worst-case scenario, when the firearm you possess is loaded physically or as a matter of law, and your possession of the same is unlawful because you do not have the appropriate permit in New York, the Port Authority Police will likely arrest you for Second Degree Criminal Possession of a Weapon, Penal Law 265.03. It matters not whether you thought you were adhering to both the TSA and airline guidelines, that you encountered no issues when you flew from your home airport, or you never took it out of the case. The law is the law. That is, if convicted you face a mandatory minimum of in excess of three years in prison to as long as fifteen years behind bars. Despite your exposure, however, Queens prosecutors are routinely open to conversations and downward departures for charges in circumstances where you made an honest mistake and were otherwise compliant with the law. Not the only factors, how far the District Attorney’s Office is willing to go, if at all, is highly dependent on the mitigating elements you and your counsel present.
Your Arrest, Your Case, Your Future
Your arrest is unique to the circumstances of what occurred, your history, and a variety of factors. Ultimately, how your case is disposed of and whether you can secure a non-criminal resolution or even a dismissal, is case specific. But remember, how you defend yourself and the strategy you implement can mean the difference between maintaining a clean record and keeping professional licenses intact, or saddling yourself with a criminal record and something you will have to answer to for years to come.
Saland Law, founded by trial attorney and former Manhattan prosecutor, Jeremy Saland, regularly represents clients arrested at NYC airports for unwittingly leaving “weapons” in their carry-ons and attempt to check their lawfully owned firearm before boarding their plane. To learn more about these offenses, and others, follow the links above.