Presuming Criminal Intent when Possessing a Non Per Se Weapon: Understanding New York Penal Law Article 265 Crimes

There are few crimes – misdemeanor or felony – that are as fiercely prosecuted by Assistant District Attorney’s throughout New York than weapon crimes. Whether the offense is of the misdemeanor variety (NY PL 265.01) and involves a gravity knife or the crime is of the felony level and involves possession of an unlicensed and loaded firearm (NY PL 265.03), prosecutors routinely take hard stances against alleged offenders. In response, New York criminal lawyers and defense attorneys who represent clients in weapon crimes find themselves either searching for a defense that exonerates a client, sufficiently challenges the legality of the allegation or mitigates the accused’s conduct.

An issue that often arises in New York weapon crimes involves those offenses that require an “intent to use unlawfully” verses those crime that are per se based on the type of weapon possessed. The latter crimes are weapon offenses that are unlawful merely based on the type. In other words, these crimes violate the law even if you displayed no hint or desire for wrongdoing.

In People v Campos, 2012 NY Slip Op 02267, an interesting scenario evolved. There, the defendant sought to overturn his conviction for Criminal Possession of a Weapon in the Third Degree for possessing a machete. More specifically, he argued the evidence did not establish his unlawful intent.

The allegations against Campos for which he was ultimately convicted centered on evidence that he possessed a machete. Campos waived the machete in the air and at a building across. Further, Campos screamed angrily at a witness. Ultimately, Campos crossed the street and banged on a gate of a closed store with the machete.

In ultimately upholding the defendant’s conviction for Criminal Possession of a Weapon in the Third Degree (As a bump up for a second felony offender), the court noted that by itself, a machete is not a per se weapon such as those set forth in New York Penal Law 265.01(1). The court also stated that possessing a machete is only criminal if and when the person who possess the large blade intends to use it unlawfully against another person. If he or she does so, that person would minimally be violating New York Penal Law 265.01(2).

The court further explained:

“‘The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against anothe’ (Penal Law 265.15[4]). The statute does not define the term ‘dangerous knife,’ but in context a dangerous knife is a knife that may be ‘characterized as a weapon’ (Matter of Jamie D., 59 NY2d 589, 592 [1983]). A knife, such as a machete, that has nonviolent uses ‘may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon” (id. at 591).”

“There was ample evidence that, at the time of the incident, defendant possessed the machete as a weapon. Defendant carried the machete at a time and place where its use for a lawful purpose such as agriculture was highly unlikely, he brandished it as a weapon, he tried to conceal it from the police, and he told the police he carried it as a weapon, albeit for defensive purposes….Even without the presumption, the circumstances support an inference of unlawful intent. Defendant argues that there was no one on the street for defendant to attack. However, the trier of fact could have reasonably concluded that defendant intended to use the machete to assault or menace someone in either or both of the two buildings at which he directed his angry shouting and actions.”

As made clear by this case as well as the statutes and other decisions referenced, intent may not always be clear. In fact, few things are in the criminal law. In certain circumstances, your intent may be presumed based on your conduct or other factors. What a court or jury will decide in your case and how the statutes and legal decisions will be applied is something that you and your counsel should prepare for at the earliest stage in the criminal process.

To better educate yourself on the crimes, statutes and legal decisions that are the foundation of New York weapon crimes found in Article 265, follow the highlighted links above or go directly to the general section for New York Weapon Crimes at

Founded by two former New York County Assistant District Attorneys, the New York criminal lawyers at Saland Law PC represent clients accused of weapon crimes through New York City and the surrounding communities.

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