Per Se Weapons Charges in New York

What are Per Se Weapons in NYC?

One of the most common categories of New York Weapons charges is known as Per Se weapons. New York has a long list of weapons written into the law that are illegal to possess under any circumstances, hence the classification Per Se.

Under Penal Law 265.01(1), the list of illegal Per Se Weapons includes:

Of the weapons listed above, the most commonly Per Se Weapons charges involve switchblades, metal or plastic knuckles and blackjacks. Some of the weapons on the list are rare and hard to find, but they remain illegal to possess. Each of the terms has a specific definition. Some examples include:

Switchblade knife, under Penal Law Section 265.00(4), “means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.”

Metal knuckle knife, under Penal Law Section 265.00(5-b), “means a weapon that, when closed, cannot function as a set of plastic knuckles or metal knuckles, nor as a knife
and when open, can function as both a set of plastic knuckles or metal knuckles as well as a knife.”

Cane Sword, under Penal Law Section 265.00(13), means a “cane or swagger stick having concealed within it a blade that may be used as a sword or stiletto.”

Kung Fu star, under Penal Law Section 265.00(15-b), means “a disc-like object with sharpened points on the circumference thereof and is designed for use primarily as a weapon to be thrown.”

New York Gravity Knife Possession

Before May 2019, a gravity knife was included on the list of Per Se Weapons. Before then, a person could be arrested for the mere possession of a gravity knife even if otherwise acting innocently and not violating any law. This was problematic because gravity knives are used by people in professional trades for their work. Making matters more problematic were the cases of the gravity knife Bump Up from a misdemeanor to a felony, when a person had a prior criminal conviction.

Even though it is legal to possess a gravity knife in New York, a person could still be arrested for Criminal Possession of a Weapon in the Fourth Degree if a gravity knife is allegedly possessed with the Intent to Use it Unlawfully Against Another Person. But, once again, in New York, the mere possession of a gravity knife is legal.

Required Proof of a Per Se Weapon Charge

To prove a Per Se Weapons charge in New York, a prosecutor is required to prove that the alleged Per Se Weapon meets one of the definitions under Penal Law Section 265.01(1). A prosecutor also has to prove that a person knowingly possessed the alleged Per Se Weapon. But, it is not clear if a prosecutor has to prove that the person charged with the Per Se Weapon knew that it met one of the definitions of a Per Se Weapon. Thus, an honest mistaken belief by a person that a weapon was not an alleged Per Se Weapon may be a defense to Per Se Weapons charges.

However, prior to the legalization of gravity knives, a prosecutor was not required to prove that a person charged with gravity knife possession knew that the knife met the legal definition of a gravity knife. The prosecutor only had to prove that a person was allegedly found in possession of a gravity knife and that the knife met the definition of a gravity knife.

New York Per Se Weapons Temporary and Innocent Possession Defense

One important defense to New York Per Se Weapons charges is the defense of Temporary and Innocent Possession. The purpose of the defense is to protect people who did not seek to possess a Per Se Weapon. But due to specific facts, the person was found in possession of a Per Se Weapon by accident, by chance or when taking it away from another person such as an attacker. The Temporary and Innocent Possession defense requires the intent to dispose of the Per Se Weapon without delay and safely. The theory of the defense is that the innocent nature of the Per Se Weapons possession negates the element of possession and the intent.

The two most important factors in determining if a Temporary and Innocent Possession defense applies to a Weapons charge are the circumstances of the possession and the duration of possession. First, the more innocent how the Per Se Weapon was initially obtained the more likely the defense is to be accepted. Second, the less time the Pe Se Weapon is allegedly possessed, the more likely the defense will apply. Even if the initial possession was totally innocent, a delay in safely disposing of the Per Se Weapon can negate the defense.

There are limits to the New York defense of Temporary and Innocent Possession. For example, a person cannot claim the defense for the general proposition that the Per Se Weapon was possessed for protection or self-defense. Such a claim negates the temporary possession aspect of the defense.

New York Per Se Weapons Charges Sentencing

New York Per Se Weapons charges under the Fourth Degree crime are a class A misdemeanor. In New York, class A misdemeanors are punished by a maximum of 1 year in jail. However, an experienced and aggressive defense attorney is often able to obtain a non-criminal outcome of a Per Se Weapons charge. However, every case is different.

A defense attorney may be able to obtain the ultimate dismissal of a Per Se Weapon charge by an Adjournment in Contemplation of Dismissal or ACD. If a defense attorney can negotiate an ACD then the prosecution and the criminal charge will be dismissed and sealed 6 months after the date the ACD is granted. No plea is required. Once the case is dismissed and sealed by an ACD, the information about the case and arrest can only be obtained in limited circumstances, but generally not by the public.

Another possible non-criminal outcome of a Per Se Weapons charge is a plea bargain to Disorderly Conduct, Penal Law Section 240.20. Disorderly Conduct is a violation and not a crime. Therefore, a plea to Disorderly Conduct does not result in a criminal record. This point may be confusing to some. If a person pleads guilty to Disorderly Conduct, he or she has pleaded guilty to something that is not classified as a crime, even if Disorderly Conduct is contained in the Penal Law. Because Disorderly Conduct is classified as a violation in New York, a person does not have a criminal record based solely on a guilty plea to Disorderly Conduct.

Speak With a New York Per Se Weapons Attorney Today

If you or a loved one is facing a per se 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 715, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.