Intent To Use a Weapon Unlawfully Against Another Charges
In New York, common Weapons charges involve a weapon with the Intent to Use a Weapon Unlawfully Against Another Person. The law is extremely broad because it includes both weapons that are obviously weapons and objects that are not designed or used primarily as weapons.
Under Penal Law 265.01(1), a person could be prosecuted on Weapons charges if he or she “Possesses 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 crime is a class A misdemeanor with a maximum jail sentence of up to 1 year.
The list of weapons in the law is exhaustive. The broadest category of weapon is referred to in the last 2 words in the law “or weapon.” That means anything allegedly used to cause an injury whether it is an obvious weapon or not. Obvious weapons include knives, guns and other things that are designed or used for self-defense. As both a former prosecutor and defense attorney I have seen weapons charges brought for non-obvious weapons such as a shoe, broomstick, cordless phone and even a wall.
Some of the specific weapons are defined in New York law, some have been defined by Courts and many of the weapons are redundant. Some of the weapons listed, such as dagger, dirk and stiletto are not defined in the law.
“Dangerous knife” is not defined in law, but Courts have held that the term means a knife that is characterized as a weapon (clearly) and primarily intended as a weapon such as a bayonet, a stiletto, or a dagger.
Deadly Weapon, under Penal Law Section 10.10(12), applies to guns and means “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles.”
Dangerous Instrument, under Penal Law 10.10(13), means “any instrument, article or substance, including a “vehicle” as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.”
NYC Weapons Presumption For Intent To Use a Weapon Unlawfully Charges
There is an important presumption in New York law that places people facing Weapons charges at a disadvantage that a skilled defense attorney may overcome. Under Penal Law Section 265.15(4), the possession of any weapon that is made or used primarily as a weapon “is presumptive evidence of intent to use the same unlawfully against another.” To repeat this only applies to obvious weapons and not the non-obvious category of weapons.
The presumption means that if the possession of the weapon is proven beyond a reasonable doubt, then the finder of fact, whether or jury or a Judge, may infer from the fact that a person allegedly possessed the weapon, that he or she possessed the weapon with the intent to use it unlawfully against another person. A person facing New York Weapons charges can rebut the presumption with their own evidence or proof and even rely on the prosecutor’s case. Whether or not a finder of fact accepts the presumption is a fact-specific question. The answer depends on the specific facts and allegations that are unique to each case.
New York Self-Defense and Intent to Use a Weapon Unlawfully Charges
One important defense to New York Intent to Use a Weapon Unlawfully Charges is self-defense, which is called Justification in the law. The Justification defense more commonly applies to non-Per Se Weapons. However, there are important limits to the defense.
In the case of a person prosecuted on Intent to Use a Weapon Unlawfully Charges for a non-Per Se weapon that is not obviously used as a weapon, Justification tends to apply if the person charged has a claim that he or she was attacked first. That means that the person charged can claim that he or she was not the initial aggressor. In that event, the claimed defense is that the person facing an Intent to Use a Weapon Unlawfully charge was only using the object that was not designed as a weapon to protect himself or herself.
The limitation of self-defense or Justification comes into play with New York Per Se Weapons and guns. The law does not allow a person who is not authorized to possess a weapon, whether a Per Se weapon or firearm, to claim that the weapon was used for self-defense. In that case, self-defense or Justification would not apply to the Weapons charge.
Sentencing for New York Intent To Use a Weapon Unlawfully Charges
New York Intent To Use a Weapon Unlawfully Charges under Criminal Possession of a Weapon in the Fourth Degree is classified as class A misdemeanor. The maximum penalty for a conviction of the crime is 1 year in jail. However, a defense attorney who is knowledgeable and experienced may be able to obtain the dismissal of the charges or a plea bargain to a non-criminal outcome.
One outcome that ultimately results is dismissal is called an Adjournment in Contemplation of Dismissal, which is called an ACD for short. If the ACD is granted, the case is adjourned for 6 months, then on the 180th day, the charges are dismissed and sealed. No appearance is necessary on the dismissal date.
Another possible outcome is a plea-bargain to Disorderly Conduct. In New York, Disorderly Conduct, Penal Law Section 240.20, is classified as a violation. It is not a crime. Thus, in New York, a conviction of Disorderly Conduct does not give somebody a criminal record the way a misdemeanor or felony crime would.
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If you or a loved one is facing a Weapons charge in New York City, we’re here to help.
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