Criminal Possession of a Weapon in the Fourth Degree (“CPW4”), Penal Law Section 265.01 is charged in New York when certain types of weapons are recovered from a person. One subdivision of the section bars the possession of any per se weapon, e.g. stiletto, gravity, knife, etc. Another subdivisions bans the possession of any weapon with an intent to use the weapon unlawfully against another, so-called unlawful intent. Both weapons possession sections are controversial because if a person has a prior conviction for any crime, the weapon possession can be charged as a felony bump up, Criminal Possession of a Weapon in the Third Degree.

When a police recover a knife or similar weapon from a person and the charge is the unlawful intent subdivision, Penal Law Section 265.01(2), often the complaint will read: “The defendant stated in substance that, ‘I carry the knife for protection.’” Unfortunately, there is a statutory presumption in Penal Law Section 265.15(4), which may be rebutted, that the possession of a weapon is evidence of an intent to use it unlawfully against another. If the logic sounds circular, then you are correct.

In People v. Spry, 2016 NY Slip Op 50013(U) (NYC Crim. Ct. Jan. 11, 2016), another weapons possession case, the Judge held that a knife taken from a person’s car combined with the statement, “It’s dangerous out here. I gotta protect myself” was not sufficient to sustain a complaint for CPW4. The decision noted that there was nothing in the complaint about the knife itself, where it was in the car, how the knife was found or the defendant’s behavior. The Court interpreted previous decisions that held “there are no circumstances when justification … can be a defense to the crime of criminal possession of a weapon” to mean simply that a defendant is not entitled to a jury instruction at trial regarding the People’s burden to disprove self-defense beyond a reasonable doubt. People v. Pons, 68 N.Y.2d 264 (1986).

Although they are rare, there are cases that have held that evidence of an intent to use a weapon in self-defense was not proof of CPW4. In People v. Edwards, 39 AD3d 1078, 1080 (3rd Dept. 2007), the Appellate Court reversed a weapons possession conviction for CPW4 for a dagger that was found attached to a bed as part of the execution of a search warrant of a home. Similarly, in People v. Bell, 158 AD2d 697, 698 (2nd Dept. 1990), the Appellate Court reversed a conviction for CPW3 after the defendant was found not guilty of attempted murder, but convicted of criminal possession of a weapon for the use of a steak knife—in self-defense. Both cases are unlike People v. Spry, which was essentially a street encounter with the police. It is unclear is Appellate Courts will follow the same logic as the decision People v. Spry, but it is a new weapon in the defense of criminal possession of a weapon charges.