The most common crime involving weapon arrests in New York is likely Criminal Possession of a Weapon in the Fourth Degree pursuant to New York Penal Law 265.01(1). This specific subsection involves per se weapons defined by statute. If you broke this crime down further in terms of the type of weapon involved in a New York City – Manhattan, Brooklyn, etc., prosecution, you would likely find gravity knives and switchblade knives on the top of the list. From personal experience as a New York criminal lawyer and former Manhattan prosecutor, I have seen hundreds of these offenses prosecuted in the criminal courts through NYC Desk Appearance Tickets (DATs) as well as “full” arrests.
For better or worse, the police and Assistant District Attorneys are fairly efficient when prosecuting misdemeanor weapon cases. Sometimes it appears that the complaint charging the accused with a crime is “cookie cutter” in nature. That is, it seems like boiler plate language is used with minimal “fill in the blank” requirements. In fact, some of these crimes, as well as other offenses including Petit Larceny and Criminal Possession of Stolen Property (NY PL 155.25 and NY PL 165.40 respectively), use pre-drafted and box checked supporting depositions. From an untrained eye it seems that all the thought and diligence is taken out of the process.
One of the major concerns about this “assembly line” means of prosecuting crimes is that it becomes so routine that errors are made and alleged crimes are not properly drafted in criminal court complaints. Crimes and complaints involving NY PL 265.01 are certainly not immune from this issue.
In People v. Tyrell Byrd, 2012KN006199, NYLJ 1202553236245, at *1 (Crim., KI, Decided May 5, 2012), a defendant was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree after a police officer allegedly recovered a gravity knife. Far from exciting or novel, the complaint against the defendant, as sworn to by the police officer, alleged that the gravity knife “[had] a blade that [opened] through force of gravity or centrifugal force and [locked] in place by means of a button, spring or other device.” Nothing more was provided.
In challenging the legal or facial sufficiency of the information (an information is a legally acceptable complaint and term of law), the defendant asserted that the police officer merely copied and repeated the statutory terms defining a gravity knife. Further, the police officer made no reference as to his training in identifying gravity knives or experience handling the same. As such, the information, as contend by the accused, was not legally sufficient. (It is important to note, before proceeding, that a complaint need not establish proof beyond a reasonable doubt, but it is required to establish existence of a prima facie case which is a lesser burden).
Fortunately for the defendant, although the police officer accurately described a gravity knife in terms of its legal definition, the court dismissed the charges against him. First, the court examined the Court of Appeals decision in People v. Dryden, 15 NY3d 100 (2010). There, a conclusory statement by itself was not enough to satisfy the sufficiency burden. While training and experience is not mandated, something more than a conclusion is required. To that end, the court addressed two other legal decisions. In the first case, People v. Hawkins, 1 Misc3d 905(A), 781 NYS2d 627 (Crim Ct, NY Cty, 2003), the police officer tested the knife to confirm it was in fact a gravity knife. In the second case decision, People v. Mathis, 32 Misc3d 1205(A) (Crim Ct, Richmond Cty, 2011), the court stated that it “is not convinced that Dryden…establishes an additional requirement that every accusatory instrument alleging possession of contraband must contain a recitation of the arresting officer’s prior training and experience…where there are also accompanying allegations of a nonconclusory nature.”
Examining these cases and decisions should make the following clear. A police officer’s mere assertion, without anything more, that a weapon (gravity knife, switchblade knife, etc.) is what he claims it to be should not be enough to defeat an accusation of facial insufficiency in a criminal court information. Whether this decision and the cases cited herein are valuable in your case is something that can, and should, be vetted with your own criminal lawyer.
To further educate yourself on knife crimes, weapon offenses, other Criminal Possession of a Weapon statutes and Desk Appearance Tickets, follow the highlighted links throughout this blog entry or review the websites below.
Crotty Saland PC is a New York criminal defense firm established by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent clients accused of crimes in the New York City region.