New York Weapons LawyerThe most common Weapons charges in New York involve knives and guns, some of which are called Per Se Weapons. However, even an object that is not designed or used primarily as a weapon can lead to New York Weapons Charges if it is allegedly possessed with an Intent to Use it Unlawfully Against Another Person. In such cases there are usually associated crimes such as Assault charges.
In New York, there are 3 categories of Weapons Charges. First, is Per Se weapons. This is a specific list of weapons that are illegal to possess under any circumstances. Second, is an undefined category of weapons that apply when any weapon is allegedly possessed with an Intent to Use it Unlawfully Against Another Person.
As explained below, Unlike Per Se weapons, the weapon that is allegedly possessed with an unlawful intent can be anything. Third, are guns or firearms. This applies to a broad category of firearms including, handguns, assault weapons, and under certain circumstances, even rifles and shotguns.
If the Weapons charges do not involve a gun, both Per Se Weapons charges and an Intent to Use a Weapon Unlawfully charges are usually prosecuted as Criminal Possession of a Weapon in the Fourth Degree, Penal Law Section 265.01, which is a misdemeanor.
Gun and firearms charges are more commonly prosecuted as a felony such as Criminal Possession of a Firearm, Penal Law Section 265.01-b, or Criminal Possession of a Weapon in the Second Degree, Penal Law Section 265.02.
No matter the category of weapon, retaining an experienced NYC Weapons lawyer early in a case is essential in reaching a favorable outcome in a criminal prosecution.
New York Weapons Charges
Weapons Possession in New York City
Criminal Possession of a Weapon in the Fourth Degree
Criminal Possession of a Weapon in the Fourth Degree, Penal Law Section 265.01, is the only weapons charge in New York that is a misdemeanor. Criminal Possession of a Weapon in the Fourth Degree could be charged in 7 different circumstances. The 2 most common charges are if a person allegedly possesses:
- Any firearm, electronic dart gun, electronic stun gun, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slingshot, shirken or “Kung Fu star”; or
- 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
The 5 remaining Criminal Possession of a Weapon in the Fourth Degree charges apply if a person allegedly 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;
Any dangerous or deadly weapon and is not a citizen of the United States;
- A rifle or shotgun, as defined in Penal Law Section 265.00(16), when not suitable to possess such rifle or shotgun, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer;
- A bullet containing an explosive substance designed to detonate upon impact; or
- Any armor piercing ammunition with intent to use the same unlawfully against another
Sentencing for Criminal Possession of a Weapon in the Fourth Degree
As a class A misdemeanor, New York Criminal Possession of a Weapon in the Fourth Degree, carries a possible penalty of up to 1 year in jail. In New York a conviction of a misdemeanor results in a criminal record, however, an aggressive and experienced Weapons charges lawyer may be able to obtain a non-criminal plea bargain or even a dismissal.
Two favorable outcomes of Criminal Possession of a Weapon in the Fourth Degree cases are an Adjournment in Contemplation of Dismissal (ACD) and Disorderly Conduct. An ACD is what it sounds like, a 6-month adjournment of a case. If a person charged stays out of trouble during the 6 months, then the case is dismissed and sealed on the next court date without requiring another appearance.
In New York, Disorderly Conduct is a violation and not a crime. Thus, a plea bargain to Disorderly Conduct is not a crime. If a person who pleads to Disorderly Conduct is asked if they have a criminal record, then the answer is no (based on that plea alone).
Weapons Charges New York Felony Bump UpOne of the many troublesome provisions of New York Weapons Charges is known as the Felony Bump Up. If a person is arrested for misdemeanor weapons charges in New York, the prosecutor has the discretion to Bump Up the misdemeanor to a felony if a person has a prior conviction for any crime—in any state.
That’s right, if a person has a conviction for any crime then a New York Per Se Weapons charge or an Intent to Use A Weapon Unlawfully charge can be Bumped Up from a misdemeanor to a felony. Under New York Weapons Charges in the Third Degree, Penal Law 265.02(1), “A person is guilty of criminal possession of a weapon in the third degree when such person commits the crime of criminal possession of a weapon in the fourth degree . . . and has been previously convicted of any crime.”
Under the felony Bump Up Weapons charge what is ordinarily a misdemeanor is punished as a class D felony. As explained above, New York Criminal Possession of a Weapon in the Fourth Degree charges carry a maximum sentence of 1 year in prison. However, as a class D felony, the Felony Bump Up Weapons charge has a maximum prison sentence of 2 1/3 to 7 years for a first felony conviction. However, prison is not mandatory for a first-time felony offender for a conviction of felony Bump Up Weapons charges
New York City Knife Laws
In New York City under New York City Administrative Code Section 10-133(b) it is illegal to possess a knife that has a blade of 4 inches or longer. Unlike New York State laws, there are exceptions for carrying a knife to or from a place for hunting, fishing, or any occupation where it is customarily required.
NYC Administrative Code Section 10-133(c) makes it illegal to hold a knife in public, regardless of blade length and whether or not the blade is exposed. This section prohibits wearing a knife outside of one’s clothing in a public place. Here, too, there are exceptions for specific types of lawful use. Violation of the NYC knife law is a violation, not a crime. The maximum penalty, assuming no other charges are filed, is a $300 fine, 15 days in jail or both.
Search Issues and New York Weapons Charges
In New York, a Weapons charge often results from a search and seizure of a person, a car or inside a person’s home. In such cases there the U.S. constitution and the New York State constitution offer protections against illegal searches.
The federal and state constitutions do not allow the police to search a person, a car or home arbitrarily. The law on search and seizure is complicated and fact specific. Generally speaking, police must have at least a reasonable suspicion that a person has committed or is about to commit a crime before a search. When a charge is based on a weapon recovered during a search, the person charged is entitled to a pre-trial hearing where the prosecutor must prove the legality of the search. The hearing, known as a “Mapp hearing,” is for the purpose of determining whether the legality of a search of a person where property like a weapon is recovered. If the court finds that the search was unconstitutional, the weapon may be suppressed and the related charges dismissed.
Hiring a New York City Weapons Attorney
The criminal justice system is complex and can be intimidating and confusing, particularly in New York City. Hiring the right NYC Weapons defense attorney is crucial in achieving the best possible outcome when one is charged with a Weapons crime in New York.
The best New York City Weapons lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Weapons charges, and aggressively defending people against Weapons charges in New York.
Speak With a NYC Weapons Attorney Today
If you or a loved one is facing a Weapons charge in New York City, we’re here to help.
Contact The Law Firm of Andrew M. Stengel
Contact us via the live chat below, through our contact form here, or call us at (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.
Our offices are located at 11 Broadway, Suite 615, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.