Fourth Degree Criminal Possession of a Weapon in New York City

Criminal Possession of a Weapon in the Fourth Degree, Penal Law §265.01, lists a multitude of different items that are illegal for a person to possess in New York City. Some of these items include: firearms, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy club, blackjack, bludgeon, plastic knuckles, metal knuckles, chukka stick, sand bag, sandclub, wrist-brace type sling shot or slungshot, shirken or “Kung Fu star.” While criminal prosecution for the possession of a firearm is commonly known, the rest of these items sound as if they literally fell out of an action movie.

What is a Weapon as Defined by State Law?

Although most people consider a firearm to mean a gun, there is actually a legal definition for this term with specific technical requirements. Under New York Penal Law §265.00 a firearm is defined as (1) any pistol or revolver (2) a shotgun having one or more barrels less than 18 inches in length, (3) a rifle having one or more barrels less than 16 inches in length, (4) any weapon made from a shotgun or rifle which has a length of less than 26 inches and (5) an assault weapon. The law then goes on to specify how the measurements of the barrel should be taken. Only if a gun falls within these barometers is it outlawed by the weapons possession statutes in New York.

Aside from firearms, criminal prosecution for the possession of a gravity knife is actually quite prevalent in New York. A gravity knife is a knife where with the flick of a wrist, a blade will spring out. Gravity knives are quite commonly used by electricians, contractors, plumbers and construction workers. Many individuals are unaware that these objects are illegal and can subject them to criminal prosecution. A contractor driving home from work can get pulled over for a traffic violation and if the police officer sees a gravity knife in the vehicle with the rest of his tools, he may find himself in a sticky situation. What started as a traffic ticket could end up as a weapons arrest with the possibility of jail time.

Criminal Possession of a Weapon in the Fourth Degree has a second list of weapons in which the possession of the item itself is not outright illegal, however when this object is intended to be used unlawfully against another, a crime has occurred. In other words, if a person intends to use an object to cause harm to another or to threaten harm, possession of that object becomes criminal. According to subsection two, if an individual possesses a dagger, dangerous knife, dirk, razor, stiletto, imitation pistol or any other dangerous or deadly instrument or weapon with the intent to use the same unlawfully against another, then they are in violation of PL §265.01 Criminal Possession of a Weapon in the Fourth Degree.

The penal law defines a deadly weapon as any loaded gun from which a shot, capable of producing death or serious physical injury may be fired, a switch blade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles. A dangerous instrument is defined as any instrument or object, including a vehicle, which under the circumstances in which it is used, attempted to be used, or threatened to be used is capable of causing death of serious physical injury. The dangerous instrument category is a catch-all for any object that can be used as a weapon but is not specified in the deadly weapon category. Depending on its use, a dangerous instrument can include mundane everyday objects such as pens, coffee mugs or a laundry iron.

What are the Penalties for Possession of a Weapon in the Fourth Degree?

Criminal Possession of a Weapon in the Fourth Degree is an A misdemeanor punishable by up to one year in jail. Because this statute is so broad in the types of weapons it criminalizes, the charge is often added on in cases where more serious dangerous object possession felonies are charged.

It is also commonly charged together with PL §120.05(2), Assault in the Second Degree, where one element of that crime is to cause injury to another by means of a deadly weapon or dangerous instrument. Because state law is detailed and specific about the types of weapons one can possess and for what purpose, it is important to hire an attorney who is familiar with all the nuances of the law as well as the defenses.

Other Consequences Following a Conviction

In addition to incarceration and potentially the requirement to pay a financial penalty, a conviction for fourth-degree criminal possession of a weapon can bring about other serious consequences. A criminal record can stay with someone for life, impacting many areas besides their basic rights and freedoms. For instance, convicted criminals may find it difficult to get hired at certain jobs or get accepted into certain educational programs. Further, when one considers that this charge is often brought alongside the charge of Assault in the Second Degree, the penalties a person may face if convicted can exceed the standard one-year period of incarceration that accompanies a standard fourth-degree weapon possession offense.

What Is the Required Burden of Proof in Possession of a Weapon Cases?

As is true in other criminal cases, a fourth-degree criminal possession of a weapon charge must be proven beyond a reasonable doubt. If reasonable doubt exists that the individual intentionally had possession of an illegal weapon, this could serve to mitigate the charge against them, or even lead to a dismissal. There may be situations where the accused was not aware that they were in possession of an illegal weapon. The statute in New York City governing fourth-degree criminal possession of a weapon includes objects that are not traditionally banned but may lead to criminal charges if someone intends to use them to harm another person. Because of this intent is an important factor for the prosecution to meet the required burden of proof. If the individual had an object that is not a traditional weapon, and can show that they did not intend to use it illegally against someone, the possession of that object may not fulfill the criteria to necessary to result in a criminal charge.

What Are Some Common Defenses to a Fourth Degree Criminal Possession of a Weapon Charge?

There are a variety of defenses that an attorney in New York City may use against a fourth-degree criminal possession of a weapon charge. Sometimes, the search and seizure that led to the discovery of the weapon may be put into question. Also, if the object was not a weapon in the traditional sense and the accused was not planning to use it to perpetrate harm against another, this could be a plausible defense as well. The possession element is an important aspect of the prosecution’s ability to prove this charge. If the accused did not actually have the weapon, this could also be a potential defense.

Retain a New York City Weapon Possession Attorney

The legal implications for having an illegal dangerous object are extremely serious. The weapons possession attorneys at our firm know these laws inside and out and have had positive results fighting these cases – including getting cases dismissed pretrial. If you or someone you know has been arrested for fourth-degree criminal weapons possession in New York City, give us a call.

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