New York Weapons Possession Attorney
The most common weapons charges in New York City, including Manhattan, Brooklyn, Queens, the Bronx and Staten Island, involve knives and guns. However, virtually any object can lead to weapons possession charges if possessed with a criminal intent.
Many weapons-related charges in New York are violent felony offenses, and carry significant mandatory minimum prison sentences.
Criminal Possession of a Weapon
Criminal possession of a weapon may be charged in the First, Second, Third or Fourth Degree, depending on the specific facts of the case. The Fourth Degree crime is a misdemeanor, while the other three are felonies.
Criminal Possession of a Weapon in the Fourth Degree
Criminal Possession of a Weapon in the Fourth Degree, Penal Law Section 265.01, is a class A misdemeanor, and is charged in one of two circumstances. First, if the weapon is listed as a “per se” weapon. Second, if a person has the intent to use any other weapon unlawfully against another.
A person will be charged with a “per se” weapon, which is specifically defined and listed in Penal Law Section 265.00, when he or she possesses any of the following:
- Electric dart gun
- Electronic stun gun
- Gravity knife
- Pilum ballistic knife
- Metal knuckle knife
- Cane sword (sword concealed in a cane)
- Plastic knuckles
- Metal knuckles
- Chukka stick (also known as nunchucks)
- Sand bag or sandclub (an improvised blackjack)
- Wrist-brace-style slingshot
- Shirken (also known as a Kung Fu sta
Mere possession of any “per se” weapon is sufficient to support a charge of Criminal Possession of a Weapon in the Fourth Degree.
- Possession of a dangerous or deadly instrument with an intent to use it unlawfully against another.
This includes a dangerous knife, but includes any number of objects, “per se” weapon or not, which could be used unlawfully as a weapon. For example, a lead pipe could be used to strike another person. Thus, this crime is often charged in conjunction with another crime such as Assault or Menacing.
Gravity Knives in New York
Gravity knives are one of the most controversial items on the per se list that triggers the charge of Criminal Possession of a Weapon in the Fourth and even Third Degrees. A gravity knife is a knife that opens through the force of gravity or the application or centrifugal force and locks into the open position. Or, as the technical definition in Penal Law Section 265.00(5) reads, a knife that “has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked into place by means of a button, spring, lever or other device.”
The source of the controversy is that gravity knives are widely available through online retailers, and New York’s ban is considered outdated by many. A federal lawsuit challenging the constitutionality of the per se law banning gravity knives is currently working its way through the courts.
Another controversial aspect is that a person with a prior conviction for any crime is charged under the circumstances above, the crime is “bumped up” to Criminal Possession of a Weapon in the Third Degree. So, a person who has a prior conviction in any state for any crime who is found in possession of a per se weapon may be charged with a felony.
However, the “bump up” is not mandatory; the prosecutor has discretion to decide whether or not to charge the crime as a felony under these circumstances.
When a crime could be charged as a misdemeanor or a felony, it pays to have a dedicated, knowledgeable advocate at your side. Contact us today if you’re facing weapons charges in New York.
Criminal Possession of a Firearm
Pursuant to the SAFE Act of 2013, Penal Law Section 265.01-b, possession of an unlicensed and unregistered firearm is a class E felony known as Criminal Possession of a Firearm. Possession of a loaded firearm is discussed below, and is a far more serious crime.
Criminal Possession of a Weapon in the Third Degree
Criminal Possession of a Weapon in the Third Degree, Penal Law Section 265.02, covers a wide range of circumstances. Some are class D felonies, while others fall into the more serious classification of class D violent felony. A class D violent felony carries a mandatory minimum prison sentence of 2 years or a first felony offense.
Criminal Possession of a Weapon in the Third Degree may be charged when a person possesses any:
- Per se weapon such as a gravity knife and has a prior criminal conviction;
- Disguised gun;
- Bomb or explosive;
- Firearm silencer;
- Three or more firearms;
- Assault weapon;
- Magazine that holds more than 10 rounds; or
- Unloaded firearm and commits any violent felony
In addition, a person may be charged with Criminal Possession in the Third Degree if he or she knowingly possesses a firearm that has been defaced for concealment or to conceal its identity.
Criminal Possession of a Weapon in the Second Degree
Penal Law Section 265.03, Criminal Possession of a Weapon in the Second Degree, prohibits possessing a loaded firearm outside of a home or place of business. Criminal Possession of a Weapon in the Second Degree is a class C violent felony, carrying a mandatory minimum sentence of 3.5 years for a first felony offense and a maximum of up to 15 years in prison.
You may recall that former Giants wide received Plaxico Burress was charged after accidentally shooting himself in a nightclub. His loaded weapon slipped and, when he attempted to recover it, he apparently accidentally hit the trigger. Burress was ultimately offered a plea bargain of Attempted Criminal Possession of a Weapon in the Second Degree, which reduced the charge to a class D violent felony and the mandatory minimum prison sentence to 2 years.
A person may also be charged under this section if he or she:
- Possesses more than 5 firearms;
- Possesses a firearm with intent to use it unlawfully against another;
- Possesses a machine gun; or
- Possesses a leaded firearm or disguised gun
Criminal Possession of a Weapon in the First Degree
Criminal Possession of a Weapon in the First Degree, Penal Law Section 265.09, is charged when a person:
- Possesses 10 or more firearms; or
- Possesses an explosive substance with the intent to use it unlawfully against a person or property
This class B violent felony is punishable by a mandatory minimum of 5 years in prison for a first felony offense and up to 25 years in prison.
New York City Weapons Laws
In addition to New York state laws regarding knives, weapons and other firearms, New York City has its own laws.
New York City Knife Laws
Under New York City Administrative Code Section 10-133(b), it is unlawful in New York City to possess a knife with a blade 4 inches or more in length. 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.
New York Administrative Code Section 10-133(c) makes it illegal to hold a knife, regardless of blade length and whether or not the blade is exposed. This section also 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.
New York City Gun Laws and the Gun Offender Registry Act
New York City’s Gun Offender Registry Act (GORA) requires New York City residents who have been convicted of certain felony firearms-related offenses to register with the New York City Police Department for 4 years after release from prison, or from the date of sentencing if no prison sentence is imposed.
GORA applies to:
- Firearm or ammunition-related provisions of Penal Law Section 256.02(5)-(8), Criminal Possession of a Weapon in the Second Degree; and
- Criminal Possession of a Weapon in the Third Degree for having a firearm outside their home or place of business
GORA imposes a series of reporting requirements with the Gun Offender Monitoring Unit (GOMU) of the New York Police Department. It is important to note that even if a person has engaged in no other criminal activity, failure to comply with GORA is a class A misdemeanor, punishable by up to 1 year in jail.
Search Issues Involving Weapons in New York
Sometimes, a weapons charge in New York results from a knife being displayed in public or a mishap like the one that triggered Plaxico Burress’s arrest, but in most cases the weapon is discovered as the result of a search.
The federal and state constitutions do not allow the police to search arbitrarily. Rather, law enforcement must have at least a reasonable suspicion that the person has committed or is about to commit a crime with a weapon. When a charge is based on a weapon recovered during a search, the defendant is entitled to a hearing before trial. This hearing, known as a “Mapp hearing,” is for the sole 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.