Fourth Degree Criminal Possession of a Weapon: NY Penal Law 265.01

Irrespective of the weapon possessed – switchblade knife, gravity knife, metal knuckles, firearm, electric stun gun or other unlawfully used dangerous instrument – most New York City area District Attorney’s Offices treat these crimes as some of the most significant types of misdemeanor offenses in the Penal Law. However, merely because prosecutors are less lenient with those arrested for and charged with possessing illegal weapons pursuant to New York Penal Law 265.01, even if it is a mistake or an infraction based on ignorance of the law, does not mean that your lawyer will be unable to challenge or mitigate the allegations. Whether you were issued a NYC Desk Appearance Ticket to appear for your arraignment in Brooklyn Criminal Court or your case is pending in either a Town or Justice Court in Westchester or Rockland County, with the right defense and best legal counsel to implement the same, you can potentially walk away from your unexpected nightmare relatively or completely unscathed.

Definitions and Elements

Often referred to as CPW 4, Fourth Degree Criminal Possession of a Weapon general comes in two common forms. The first, a violation of Penal Law 265.01(1), called "per se" offenses, transpires when you possess certain objects no matter how you intended to use them. Merely having these items meets the legal threshold of criminality. The second violation of this statute, Penal Law 265.01(2), differs in that the manner of the instrument’s use as a dangerous instrument that dictates the charge. This is true even if the weapon is not an object one would normally consider or classify as such.

Penalties and Punishment

All subsections of CPW4 are class “A” misdemeanors. As such, if convicted, you can find yourself locked up for as long as one year in a county or city jail, as well as probation, community service, and/or fines and surcharges.

Example and Hypothetical Scenario

One of the most common scenarios involving Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law 265.01(1) arises where a person is stopped in the subway or on the street after the NYPD observe what to be the clip of a knife on the outside of their pant pocket. Upon search, the clip is attached to either a switchblade or gravity knife and the police make an arrest for a New York knife crime. Another routine example is where a resident or visitor is flying out of JFK or LaGuardia Airport and forgets or is simply unaware that in his or her bag is a bludgeon, metal or brass knuckles, or even certain sling shots. These objects qualify as per se contraband and a Desk Appearance Ticket is issued assuming you have a clean past.

Usually associated with other “bad” conduct, a relatively common scenario that runs afoul of Penal Law 265.01(2) involves one party using an otherwise insignificant object as a dangerous instrument to perpetrate the crimes of Assault or Menacing. While an iPad or laptop is certainly not considered as such a thing by itself, if you raise it over your head to strike someone or actually hit them in the face, you have not only committed the crime of Assault, but CPW4 as well.

Related Offenses and Collateral Issues

All weapon crimes, even those not involving a loaded gun, place an accused in the precarious situation of being saddled with adverse consequences to their careers and immigration status. For example, whether you have a Green Card or student visa, will a conviction be deemed a Crime Involving Moral Turpitude? Even if immigration issues are not a concern, how will your arrest damage your professional licensing from FINRA and medical certifications to your job with the MTA or the Department of Education?

Your Case, Your Defense, Your Future

Just as with their felony counterparts, misdemeanor weapon crimes in New York City are subject to the same legal scrutiny. For example, what was the basis of your stop, frisk and search by the police? Was your possession direct or constructive, meaning, was it on your person or in or near you in a car or in a reachable area? Furthermore, were the police or prosecutors relying on a legal presumption when they charged you with possessing the particular object? Certainly not an exclusive list, the legal and evidentiary issues addressed with your attorney can make the difference between walking away with a criminal record or no record at all.

Be neither naïve nor cavalier, any arrest is serious and one for Penal Law 265.01 is no exception. Protect yourself. Protect your career. Protect your future.

Call the New York City weapon crimes lawyers and former Manhattan prosecutors at 212.312.7129 or contact us online today.

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