Published on:

NY Criminal Defense & Criminal Possession of a Weapon

In New York criminal possession of a weapon, for the purposes of “gun cases” is classified into three “degrees” or levels of seriousness. Criminal Possession of a Weapon in the Second Degree, Third Degree, and Fourth Degree. Criminal Possession of a Weapon in the Second Degree is a class C felony, Third Degree is a class D felony, and Fourth Degree is a class A misdemeanor. The class C felony is punishable by a maximum of 15 years in prison, the D felony by a maximum of 7 years in prison, and the A misdemeanor by a maximum of 1 year in jail. Also, there is a theoretical 1 year mandatory jail sentence on any felony gun conviction.

Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sand club, wrist-brace type slingshot or slingshot, shirked or “Kung Fu star”; or (2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or (3); or (4) He possesses a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense; or (5) He possesses any dangerous or deadly weapon and is not a citizen of the United States; or (6) He is a person who has been certified not suitable to possess a rifle or shotgun, as defined in subdivision sixteen of section 265.00, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer. Whenever a person is certified not suitable to possess a rifle or shotgun, a member of the police department to which such certification is made, or of the state police, shall forthwith seize any rifle or shotgun possessed by such person. A rifle or shotgun seized as herein provided shall not be destroyed, but shall be delivered to the headquarters of such police department, or state police, and there retained until the aforesaid certificate has been rescinded by the director or physician in charge, or other disposition of such rifle or shotgun has been ordered or authorized by a court of competent jurisdiction. (7) He knowingly possesses a bullet containing an explosive substance designed to detonate upon impact. (8) He possesses any armor piercing ammunition with intent to use the same unlawfully against another. Criminal possession of a weapon in the fourth degree is a class A misdemeanor.

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.

A New York Criminal Lawyer said that, conviction of a criminal possession of a weapon case can also create significant problems for a defendant who is not a citizen, even if the defendant is a legal resident. Weapons (especially guns) convictions can cause a non-citizen to be deported, denied citizenship, or excluded from legal entry to the United States at the border. This can be true even if the conviction is for the A misdemeanor criminal possession of a weapon in the fourth degree. Of course a qualified immigration lawyer needs to be consulted with respect to any individual situation, but a non-citizen who is contemplating pleading guilty even to the misdemeanor form of criminal possession of a weapon needs to be aware of the potential difficulties.

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, 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 “although 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.

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.

In order to protect you rights, seek the legal assistance of a New York Criminal Attorney and New York Gun Crime Attorney at Stephen Bilkis and Associates.