Other Factors in NY Weapon Possession Arrests

Did You "Knowingly" Possess?

An important consideration that your New York criminal look will look at in your defense to an arrest for NY PL 265.01 is whether you "knowingly" possessed the alleged weapon. According to New York Penal Law, a defendant is guilty of this crime if he or she "knowingly" possessed the weapon in question. As simple as it sounds, this means that in order for a New York prosecutor to prove a CPW 4 case beyond a reasonable doubt, he or she must prove that you knowingly possess, for example, a Switchblade Knife or Gravity Knife.

A few years ago, the First Department, a court that rules on criminal appeals cases from New York City, made an interesting ruling on the subject of Criminal Possession of a Weapon in the Fourth Degree that expanded the burden of proof regarding "knowability." The court found that although certain kinds of weapons possession (like Switchblades and Gravity Knives) generally have clear guidelines under the law, the prosecution must also prove that the defendant knew that the object functioned as a weapon [ People v. Ford , 58 A.D.3d 242 (1st Dept. 2008)]. For example, if the alleged weapon was a Switchblade Knife with the appearance of a cigarette lighter, the owner must be proven to have known that it could indeed operate as a weapon.

Of course, each case is different, and must be evaluated carefully with a New York criminal defense attorney. There are no guarantees of winning a case regardless of how strong you believe your defense to be. However, working with an attorney experienced in matters of New York criminal law will likely improve your chances of having a successful outcome.

A Hypothetical Example

To help determine the strongest defense of your rights, your New York criminal defense attorney will want to discuss in detail the events related to the allegation, and may also wish to scrutinize the object in question. Despite how the prosecution portrays it, the charge may not be entirely black and white. A hypothetical example helps illustrate how mistakes by the police or prosecution may provide grounds for a solid defense.

Let's say you are walking to your place of employment with a work knife secured in a clip on your belt. A police officer, noticing the clip, performs a search and charges you with possessing a "Gravity Knife," a Class "A" misdemeanor. Whether you are arrested or issued a NY Desk Appearance Ticket (DAT), you have not only had your day spoiled, but you are also facing a potential sentence of up to a year in jail and a permanent record.

But was it really a "Gravity Knife," as defined by the law? The New York Penal Law describes a Gravity Knife as one in which a blade releases from the handle when centrifugal force or gravity is applied and, after its release, is held in place by a lever, spring, button or other mechanism. Perhaps your knife was actually a "butterfly knife," a knife that opens with gravity but doesn't lock in place. If your New York criminal lawyer can prove that it was in fact a "butterfly knife," the possession charge may be proven to be baseless.

On the other hand, if the knife was used in an unlawful manner, regardless of whether it was accurately described as a Gravity Knife, you may still be liable for the misdemeanor charge. In addition, possessing any knife in New York City with a blade of four inches or longer is still considered a violation, pursuant to New York City Administrative Code (10-33), a lesser type of charge.

Finally, when it comes to Criminal Possession of a Weapon in the Fourth Degree, whether you did or didn't know that you were in illegal possession of a certain kind of knife doesn't matter in the eyes of the law, as long as you knew that you possessed the knife. Ignorance of the law is no defense against this charge.

If You Have Prior Convictions

Although the case law is fairly clear about what constitutes Criminal Possession of a Weapon in the Fourth Degree, the prosecution may attempt to "bump up" the charges to a more serious offense if you have a prior criminal conviction. In this case, the misdemeanor charge may become a felony charge instead: Criminal Possession of a Weapon in the Third Degree pursuant to New York Penal Law 265.02.

Unfortunately, prosecutors may use this option for any prior crime for which you have previously been convicted. So even if a decade ago you were caught jumping a turnstile, trespassing or possessing a Switchblade, and years later you are also charged with having a Switchblade, the new charge may be bumped up to a Class "D" felony by the prosecution. Unlike the misdemeanor, which is punishable by up to a year in jail, the felony charge carries a sentence of up to seven years in state prison. These are substantial charges that should only be addressed under the guidance of a skilled defense counsel.

Additional Considerations

Regardless of the details of your arrest, Desk Appearance Ticket, citizenship status or prior history, and regardless of how strong you believe your defense may be, it is crucial to remember that a conviction for a weapons possession charge could have tremendous consequences for the rest of your life. Even if you agree to a lesser offense, it may still appear on a future criminal background check. You might want to ask yourself how it would feel to have a future job or career dead-end because of an indiscretion or oversight from long ago. In addition, if you are convicted of the crime, you could be sentenced to up to a year in jail, which is certainly far from ideal.

For these reason and others, your best option is to contact a New York criminal attorney with experience defending clients against these types of charges. If you are currently facing a charge of Criminal Possession of a Weapon in New York, do not wait to see if it might disappear on its own. It won't. Instead, contact a trusted attorney who can work with you to begin to plan your most vigorous defense now to protect you well beyond tomorrow.

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 Crotty Saland PC's New York Criminal Lawyer Blog and its weapon crime section.