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Firearm, Knives and Weapon Possession Crimes: NY Penal Law Article 265

Whether the weapon you allegedly possess, physically or constructively, is considered “per se,” a “dangerous instrument,” or “deadly weapon,” the reality is that an arrest in New York City or one of the many municipalities found throughout the counties of Westchester, Rockland, Putnam, or Dutchess, can have long lasting and dire consequences. From incarceration to the revocation of professional licenses and immigration statuses, your failure to properly challenge a Penal Law Article 265 case will reverberate well beyond the four corners of any courtroom. Only with your legal counsel and an experienced weapon crimes lawyer at your side, can you implement the best defense to address the legality of a stop, search and recovery of the alleged contraband, the lawfulness of your statement or any other issue you may face. From mitigation to evidentiary challenges, the prospect of a permanent criminal record and up to one, seven, fifteen and even twenty-five years in custody cannot be ignored.

Definitions and Crimes

Crimes involving weapons – switchblade knifes, pistols, firearms, revolvers, machetes, metal knuckles, hammers, and any other objects that can maim or kill– are aggressively prosecuted by District Attorneys in every single county from Manhattan and Brooklyn to Queens and Westchester. It is of no consequence if you are accused of Criminal Possession of a Weapon on a misdemeanor complaint, felony complaint or indictment. While each offense may differ in its statutory language, the following are some of the terms that an accused and his lawyer must be fully aware.

Deadly Weapon

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. These are often referred to as the “per se” weapons.

Dangerous Instrument

Any instrument, article or substance, including a vehicle, which, under the circumstances how it is actually, attempted to be, or threatened to be used, is readily capable of causing death or other serious physical injury.

Whether you are accused of violating an Article 265 crime based on the nature of the object or how you are using it, remember that it is possible to violate numerous statutes in an allegedly illegal act or acts. These routinely include Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01, Third Degree, Penal Law 265.02, Second Degree, Penal Law 265.03 and First Degree, Penal Law 265.04

Other crimes related to firearms are Criminal Possession of a Firearm, Penal Law 265.01-b(1), when the gun, revolver or pistol in question is unloaded.

Penalties and Punishment

Any arrest or allegation involving Penal Law Article 265, aka, a CPW crime, exposes you from as little as one year in jail or frighteningly significant mandatory minimums and maximums terms of incarceration. These terms can be as long as seven, fifteen and twenty-five years. Simply, the dread and prospect of serving a fraction of time allowed by law incarcerated “upstate” or in a county jail, such as Rikers Island in New York City, should motivate you to retain the best criminal counsel and defense attorney to challenge the accusations and defend yourself against any of these offenses.

Remember, if the crime is statutorily identified as a violent felony, pursuant to Penal Law 70.02, then no judge will can ever seal your conviction irrespective of how long you remain clean and make amends for your past indiscretions.

Example and Hypothetical Scenario

Whether you have a gun or other weapon at a NYC airport, in your waistband on the street or even in a vehicle with four other people, there are "strict liability" standards and legal presumptions and theories of constructive possession that may severely hamper your defense.

While possession of a switchblade knife, metal knuckles, or gravity knife in violation of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01, is "only" a misdemeanor, if you possess a loaded gun, pistol, revolver or other firearm outside your home or place of business without a permit (out of state permits are not sufficient), the only way you avoid the three and one half year minimum prison sentence on a conviction for Second Degree Criminal Possession of a Weapon, Penal Law 265.03, is that your criminal lawyer implements the best defense to mitigate your conduct or challenge legal or factual foundation of the District Attorney’s case.

Related Offenses and Collateral Issues

Even if not actual offenses involving weapons, it is a crime in New York to illegally possess ammunition in violation of Penal Law 265.37 and NYC Admin. Code 10-131(i). While not only perpetrated at airports, it is far from atypical for the Port Authority Police Department to issue a summons for these misdemeanors or even arrest a person with a Desk Appearance Ticket. Even worse, if you have a gun that is unloaded and packed away in a case as mandated by the TSA, you can still be arrested at JFK or LaGuardia Airport by the Port Authority Police for any of these misdemeanors or felonies.

Irrespective of the charge and amount of time you potentially face, even if you only spend one day in jail or even none at all, the ramifications to your immigration status and consequences to professional certifications and careers can be catastrophic.

Your Case, Your Defense, Your Future

While you may contend that your firearm was secured in a case and not loaded, if the bullets or ammunition are readily capable of being placed in the firearm, the law may permit prosecutors to charge you with one of the most serious felonies on the books. With a vast number of factors that will come into play from whether a weapon is considered “per se” or a “dangerous instrument,” to the legality of a stop, search and recovery of the alleged contraband, and whether law enforcement is relying on a rebuttable legal presumptions or theory of constructive possession, the sooner you identify issues in your criminal case with your counsel, the greater the likelihood that you will implement the strongest defense.

Regardless of the situation you find yourself in, your options are limited. Either accept responsibility and be saddled with a criminal record and possible incarceration or retain the defense attorneys and former Manhattan prosecutors at Saland Law to work alongside of you, answer any question you might have, and advocate to best get you where you want, and need, to be. With your life, career, immigration and family’s future in jeopardy, know that Saland Law has secured dismissals, violations and non-felony resolutions for clients in a wide variety of weapon crimes including loaded firearms, airport firearm charges, and misdemeanor appearance ticket offenses throughout the boroughs of New York City and the Hudson Valley. When there is no substitute for experience, knowledge and advocacy, you can count on the criminal defense team at Saland Law.

Call us at (212) 312-7129 contact us online today to discuss your case and possible defenses.

New York Criminal Lawyer Blog - Weapon Possession
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