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Defenses to NY Weapon Possession Arrests

If you receive a Desk Appearance Ticket (DAT) or have been arrested for Criminal Possession of a Weapon in the Fourth Degree (CWP 4 or NY PL 265.01) in New York City or a suburban county, you should immediately contact a New York criminal lawyer to determine the best response. Prior to accepting any offer from the District Attorney’s office, you should discuss the potential impact with your counsel. Your attorney may believe that you have a defensible position based on the nature of the allegation, or that the search for the weapon was done in a way that would not be acceptable to the court, thus improving your chances of having the charges dropped. Or perhaps the arresting officer did not accurately represent the object in question and was in error in calling it a weapon (it may be advisable to have your attorney “test” the weapon if possible). Your criminal defense attorney will want to know the exact details of what happened and how the charges were made in order to help you mount your best defense. As noted above, your attorney will also want to examine the object in question to see whether or not it accurately falls under the statute charged.

Defending Your Case

Prosecutors take weapon possession cases very seriously, so they rarely offer a deal for these charges when the files initially land on their respective desks. In working with your New York criminal attorney to prepare your defense strategy, one of the first measures will be to figure out if the search and seizure of your property was done according to the law.

Beyond this, your attorney will also seek to ascertain how the alleged weapon compares to its definition in New York Penal Law. If the object in question does not meet the standards described in the penal law, or if you were accused of possessing a certain type of weapon that was in fact a different object entirely, you may have additional grounds for having your case dismissed.

The law uses the following definitions to explain some of the items that fall under Criminal Possession of a Weapon in the Fourth Degree [New York Penal Law 265.01 (1)]:

  • A Switchblade is a knife that opens automatically when a hand presses a button, spring or other mechanism.
  • A Gravity Knife has a blade that releases when centrifugal force or gravity is applied and that locks into place by means of a lever, spring, button or other method.
  • A Pilum Ballistic knife has a blade that the user can project from the handle by applying pressure to a lever, button, spring or by other means.
  • A Metal Knuckle Knife, when closed, is unable to be used as metal knuckles or as a knife, but when opened can be used as both.
  • A Cane Sword is a cane with a hidden blade that may be used as a weapon such as a sword or stiletto.
  • Chuka Sticks, also known as nunchakus, contain two or more hard pieces connected by a rope, chain or thong and can be swung with one hand so one part can move freely as can cause serious injury when used to choke or strike another person.
  • An Electronic Dart Gun, when fired, uses a projectile or dart to transmit a harmful electric shock to the recipient.
  • An Electronic Stun Gun sends a high-voltage shock to another person when used as a weapon.
  • A Kung Fu Star has sharp points around its edges and is designed to be thrown as a weapon.

Understanding the letter of these definitions, along with the legal precedent surrounding them in the courts, may make all the difference in whether or not you are found guilty of a Class A Misdemeanor and sentenced to up to a year in jail or you get a "slap on the wrist." Just because a police officer or prosecutor claimed that a certain alleged weapon or object is illegal or was used illegally does not necessarily mean it is established fact.

It is equally important to determine whether or not the officer who charged you correctly labeled the object in question when signing the complaint. For example, if the officer wrote that you were in possession of a Switchblade, when in fact the blade locks in place like a Gravity Knife, then by definition you did not have a Switchblade in your possession. The possession may have been unlawful, but your New York criminal lawyer’s dismissal motion may succeed, unless the prosecution drafts a superseding complaint.

Mitigation as a Defense

It may be that on its face, the complaint against you is strong. While you made a mistake, you still possessed a "weapon" as defined by the New York criminal code. Instead of confronting and challenging the evidence, mitigating your conduct may be the better approach in seeking, for example, a six month dismissal through what is commonly referred to as an ACD. In such a case, your background, life experience, behavior at the time of arrest, and prior criminal history will all be relevant. If mitigation is your route, and in many cases it is, take the time to sit down with your criminal lawyer and share with him or her all the information that is needed to best plead your case.

Our law firm serves clients in Manhattan, Brooklyn, Bronx, Queens and Westchester County. Call us at 212.312.7129 or contact us online today to speak with our New York attorneys and former Manhattan prosecutors about misdemeanor weapon crimes.

In depth information on weapon crimes, statutes and laws is located on Saland Law's New York Criminal Lawyer Blog and its weapon crime section.

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