Posts Tagged ‘criminal possession of a weapon’

NEW YORK CRIMINAL LAWYERS ON DEFENDING POSSESSION OF A GUN IN A CAR

Tuesday, July 31st, 2012

Imagine the following scenario: You get into the back seat of a car with three of your friends – Alex is driving, Brian is in the front passenger seat, Chris is in the back seat behind the driver, and you’re sitting next to Chris behind Brian. The four of you drive off and Alex takes a left turn without signaling. Unfortunately, an unmarked (undercover) police vehicle is parked on the opposite corner and observes the traffic infraction. The police car activates its front grill lights and begins to follow the vehicle, ordering it to pull over. Brian pulls a silver semi-automatic handgun from his waistband, turns around and tosses it at your feet, urging you to kick it under his seat and out of view. You’re shocked – you no idea there was a gun in the car…in a panic, you kick the gun forward and out of sight.

The plain clothes police officers approach the car and ask everyone to step out. One of the officers flashes a light into the interior of the car and sees the reflection of a silver object under the front passenger seat. Without asking a question, he reaches under the seat and retrieves a silver handgun, which he determines to be loaded

Question: How do the police officers determine who to arrest? The answer is easy – they arrest everyone. Alex, Brian, Chris, and you are all jointly charged with Criminal Possession of a Weapon in the Second Degree in violation of Penal Law 265.03(1)(b), which is a class “C” felony, and which carries a maximum of 15 years in jail.

What is the police officers’ authority to do this? The answer is the “gun presumption” or “car presumption,” which allows the police to charge everyone in the car with possessing that one gun pursuant to statute. Penal Law 265.15 states as follows: “The presence in an automobile…of any firearm…is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon…is found.” The statute goes on to exclude the following scenarios:

“Except: (a) if such weapon…is found upon the person of one of the occupants therein;

(b) if such weapon…is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his or her trade, then such presumption shall not apply to the driver;

(c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his or her possession a valid license to have and carry concealed the same.

In other words, if an unlicensed gun is found in a vehicle and not on the person of one of the passengers (e.g., in their waistband), any and all occupants (except a duly licensed hired driver) will be charged with possessing that one gun. The fact that one gun can be “possessed” by more than one person may seem contrary to logic, but the law distinguishes between “possessing” something and owning it. In order to possess something you simply have to exercise “dominion or control” over it…i.e., be able to pick it up, kick it, use it, or hide it. There is no numerical limit on how many people may possess something.

This is a common theme in New York gun possession: even though the gun was “Brian’s,” the police never observed it on him – arguably they’d be eyeing you with more fervor as the owner since it was at your feet when the car was stopped. In any event, EVERY passenger in the case would be facing serious felony charges.

If you or someone you know has been arrested and charged with possessing a gun in a car, or any weapon for that matter, you need to hire an experienced criminal lawyer. Some jurisdictions such as Manhattan have very strict gun enforcement practices and recommend state prison in practically every gun case. Obviously, it is not a matter to take lightly, and it is a must to have an attorney who will defend you in such a situation.

“NEW YORK CRIMINAL LAWYERS ON DEFENDING POSSESSION OF A GUN IN A CAR”

Gravity Knives and New York state law

Wednesday, April 20th, 2011

The legal prohibition of gravity knives is one of the most vexing crimes in New York state law.  First, many people get arrested for this crime without having any idea that their knife is illegal, and this is very understandable given that “gravity knives” were for so long so readily available throughout New York state at Army/Navy stores, Wal-Mart, and even Home Depot.  (For more information on knives and New York retailers, see here).  Second, there is serious disagreement about what is and is not a true gravity knife, and the answer is not always so clear in a courtroom.  Indeed, we find that prosecution for this crime can differ wildly from jurisdiction to jurisdiction.  Nevertheless, our extensive experience with these types of arrests allows us to fairly summarize the risks involved in carrying certain types of weapons, and also describe what NYC police officers consider to be a knife worthy of an arrest.

Under Penal Law Section 265.01, it is a Class A misdemeanor punishable by up to one year in jail to knowingly possess a gravity knife.  The stakes for these cases are even higher for people who have criminal records.  Indeed, anyone with a criminal record – even just a previous conviction for a misdemeanor – is subject to possible indictment for the Class D felony of Criminal Possession of a Weapon in the Third Degree (Penal Law Section 265.02[1]) for merely possessing a gravity knife.  The penalties for a conviction on this felony charge can include multiple years in state prison.

A gravity knife is defined by Penal Law Section 265.00[5] as “any knife which 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.”

Interestingly, the term “gravity knife” now applies to knives that were not contemplated by the Legislature back when the prohibition against them was enacted.  Indeed, the original “gravity knife” was a blade designed for paratroopers in World War II.  Paratroopers were obviously at risk for getting caught in trees and tangled up in their parachutes, so they needed knives that they could open easily with one hand to cut themselves free from those situations.  To address this need, the US Army designed a knife in which the long thin blade could slide in and out of a hole at one end of the handle by simply turning the handle upside down.  In short, the paratrooper could push a button in the handle and the blade would fall out of the handle via the force of gravity.  Notably, the blade did not fold open out of the handle – the blade was more akin to the point of a clickable ballpoint pen in relation to the handle of the knife.

Nowadays, however, the vast majority of arrests for “gravity knives” in NYC involve knives for which the blade folds out of the handle.  The classic folding knife – like a Swiss Army knife, for example – typically requires two hands to open: one hand holds the handle, and the other hand pries open the blade from the handle.  However, the knife becomes a “gravity knife” in the eyes of New York law if it can be “unfolded” with one hand.  Oftentimes, these “gravity knives” are really nothing more than folding knives that became loose in the hinge holding the blade in the handle.  Some of these knives are classified by manufacturers as “speed-assist knives” or “Kershaw knives,” and have internal springs that allow the blades to open easily and lock into place.  But many of these gravity knives are really nothing more than standard folding knives – like Swiss army knives – in which the hinge connecting the blade to the handle is loose enough for a person to flick the knife open with one hand.

A possible gravity knife or "speed-assist folding knife".

 

Police officers have been trained to “test” knives for whether they are gravity knives by flicking them downwards as hard as possible in an effort to get the folding blade to come out and lock into place.  They may try four or five times before they are successful, but if they can get it to work, then, chances are, you are going to get a Desk Appearance Ticket (DAT) or outright arrested.  We have seen officers at trial embarrass themselves somewhat by failing to get the knife to open on the first few tries in front of a jury, although we have never seen an officer fail altogether.  We have also been surprised to hear NYPD police officers say, under oath, that they have been given the authority and discretion to let someone go or merely issue a summons if the owner of a gravity knife claims to use it for his job. However, there is no legal defense entitling someone to avoid arrest or be found not guilty at trial based upon the knife being used for work or being transported to or from work.  (Unlike in some other knife charges).  There is, however, an exemption for certain licensed gravity knives when engaging in hunting, trapping, or fishing activities (see Penal Law Section 265.20[6]).

If you or a loved one have been arrested for possessing a gravity knife, you should contact the experienced criminal defense attorneys at Galluzzo & Johnson LLP.  Their attorneys have worked with experts from the American Knife and Tool Institute (AKTI) to better understand the manufacture and characteristics of various knives, and thus are experts themselves when it comes to representing individuals charged with possessing gravity knives and other illegal knives.  They have negotiated numerous favorable dispositions for their clients and have also secured surprising trial acquittals because of their technical expertise in this area.

NYC Lawyers Explain Gun Possession and Related Charges

Monday, April 18th, 2011

Have you been arrested for bringing a gun to a New York?

There is an age-old principle of law which says that ignorance of the law is no excuse for breaking it (ignorantia juris non exusat); if it were, one could claim a defense to every crime on the grounds that he/she was unaware such conduct was illegal. While the general policy implications of the doctrine are obvious, there is one particular area of the law where this doctrine seems to have an extremely harsh impact on individuals and their families, and that is in cases where people with out-of-state permits to possess firearms pass through either one of New York City’s two major airports with properly-secured guns, completely unaware that they are committing what is classified as a “violent felony” here. What’s worse is that their conduct is perfectly legal in their home states and they have no idea that New York does not recognize their out of state gun permits. The result is that travelers literally hand over their weapons to the authorities thinking that what they are doing is perfectly legal and proper, only to find out that the are being arrested and charged with a serious crime.

Many people enter New York City with guns which are legal to possess in their home states. In fact, many of these people have properly obtained permits to possess their guns back home and are simply unaware that those permits do not bestow the right to possess those guns here in New York City. All too often, unsuspecting travelers will walk into either La Guardia or JFK International airport with their firearms under the mistaken belief that the permit or license they properly obtained in their home state is applicable here. The traveler has no idea that he or she is violating New York law by possessing the firearm until he/she is arrested after properly securing the firearm in the appropriate travel case and declaring it at the airport. In other situations, the passenger secures and checks the gun in their home state where they are duly licensed, in compliance with Federal Law and airline regulations, and no one in the departing state stops them from travelling to New York City! It isn’t until that person arrives in New York and finds themselves in handcuffs and shipped off to central booking then criminal court, where it can take 24 hours in custody before they get to see a Judge and hopefully the light of day if they are released. The result is both shocking and terrifying to the person who never saw any of this coming…

In a vast majority of these cases, not only has the person secured the firearm in the proper travelling case, but they have unloaded the firearm and secured the ammunition apart from the firearm itself and declared or checked that too. Not only is the person unaware that their out of state permit has no effect in New York, they have no idea that in the eyes of New York law they are carrying a LOADED firearm.

New York Penal Law 265.00(3) defines a “firearm,” in pertinent part, as any pistol or revolver. PL 265.00(15) defines a “loaded firearm” as follows – “any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.”

The italicized portion of subdivision 15 is what makes this common occurrence so serious – even if there isn’t a single bullet in the gun, the law will consider it “legally loaded” if the person in possession of the gun is also in possession of ammunition for it, regardless of the fact that it is removed from the gun itself. That the ammunition is in a completely separate container or section of the packaging than the gun is of no consequence – you are in possession of a “loaded” firearm.

As if this weren’t enough of a shock to the traveler who didn’t realize he/she was doing anything illegal, that person is then charged with violating Penal Law Section 265.03(3), Criminal Possession a Weapon in the Second Degree, which reads as follows:

“A person is guilty of criminal possession of a weapon in the second degree when such person possesses a loaded firearm.”

This charge is a class C violent felony, which means that it carries a MINIMUM sentence of 3.5 years in prison, and as much as 15 years in prison. The case is then handed to a prosecutor in about as perfect a package as was the gun when it was literally handed over to the authorities by the traveler at the airport. Because there is often no factual question that the traveler possesses the gun, and ignorance of the law provides no legal defense, the prosecutor then has all of the leverage in world. The prosecutor can demand a 3.5 year prison sentence, or may come down to a lower felony and offer less time (The Manhattan District Attorney’s Office has often demanded a 2 year prison sentence in even first arrest gun cases). The one silver lining, however, is that the prosecutor also has the discretion to come down to a non-jail sentence, and a defense attorney can advocate for leniency despite the fact that there is no legal defense to the charge.

The only option in a case such as this is to hire an experienced attorney who can hit the ground running to work with the prosecutor to try to negotiate a fair disposition that avoids the stiff penalties of imprisonment that are available given the nature of the charges.

If you or someone close to you has been arrested for bringing a firearm to one of New York’s airports, or for gun possession anywhere for that matter, contact an experienced criminal defense attorney at Galluzzo and Johnson LLP, where several of our attorneys are former prosecutors can help you.

“NYC Lawyers Explain Gun Possession and Related Charges”

Attorney Employs Technical Defense to win Acquittal in Criminal Possession of a Weapon Case

Friday, June 4th, 2010

Attorney employs technical defense to win Acquittal in Criminal Possession of a Weapon Case.  Matthew Galluzzo, of Galluzzo & Johnson LLP and the newyorkcriminaldefenseblawg.com recently won an jury acquittal in Manhattan for the firm’s client who had been charged with possessing a switchblade knife.  The facts of the case were relatively straightforward.  One morning in October 2009 the defendant was about to board a New York City subway train carrying what he believed to be a perfectly legal knife on his waistband.  Police observed him with the knife attached to his belt in plain view, arrested him, and charged him with a variation of Criminal Possession of a Weapon in the Fourth Degree, Penal Law section 265.01.

At trial, Galluzzo conceded the facts of the arrest and that the defendant possessed the knife in question.  The defense employed was simple, yet effective: the knife was not a switchblade.

Penal Law section 265.01 reads as follows:

§ 265.01 Criminal possession of a weapon in the fourth degree.
    A  person  is  guilty of criminal possession of a weapon in the fourth
  degree when:
    (1) He or she possesses any firearm, electronic dart  gun,  electronic
  stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal
  knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles,
  metal  knuckles,  chuka  stick,  sand  bag,  sandclub,  wrist-brace type
  slingshot or slungshot, shirken or "Kung Fu star"

The definition of switchblade is contained in Penal Law section 265.00(4).

    4. "Switchblade knife" 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.

Thus, in order to prove the defendant’s guilt of possessing a switchblade, the People had to prove that the knife recovered from the defendant was a “switchblade,” as set forth in the charging documents.  The defense challenged the prosecution’s characterization of the knife in question as a switchblade from the outset.  In his opening statement, Galluzzo asserted that “Every knife has two parts, a blade and a handle.  And this button or notch . . . is, in fact on the blade.  So when you’re opening this knife, you’ll see what you’re really pushing on is the blade and not he button on the handle.”

The arresting officer testified as to the details of the arrest, and reported to the jury that the defendant told him that he carried the knife for his protection, since he could not legally carry a gun.  The officer testified that the defendant acted in a cool, calm and collected manner in dealing with the officers, and that he “gently” handed the knife over when asked to do so.  The defense asked the arresting officer a series of questions about the location of the button on the knife, including the following:

Q: But the button is basically on the back of the blade itself so as the blade moves, the button is moving too?

A: Correct.

Later, when the arresting officer’s partner testified on cross-examination, the following colloquy took place:

Q: Now that little notch without opening it, that little notch on the knife that you are pushing, that’s made out of metal, right?

A: Yes.

Q: And it’s the same metal that the blade is made out of or appears to be, right?

A: Yes.

Q: And, in fact, that little notch is actually attached to the back of the blade, correct?

A: That’s correct.

Q: And that little notch because it’s attached to the blade swings to the other side of the knife when the knife pops open; right?

A: That’s correct.

Q: And then when you close the knife back up, that little notch that’s attached to the blade swings back through the handle of the knife back into the back where it is now, right?

A: That’s correct.

Later, in summation, Galluzzo highlighted the confusing nature of the statute in question:

“You know what, it seems almost absurd that we’re here.  Why can’t someone just tell us whether this things is a switchblade or not.  The legislature was supposed to tell us  But, unfortunately, once again, we have been failed by our State legislature because we’ve been given a statute that’s poorly written and does not make clear what is and what is not a switchblade.  As a result, people are getting arrested for possessing knives that they don’t realize are illegal, and you’re being brought here and forced to sit through a trial to sort this whole mess out.”

The defense went on to discuss the knife itself:

“You could see if you look up close at the knife that it’s all one piece of metal, that blade, and that blade has a sharp side and on the back it has this little notch sticking out.  So are you pushing a button or device in the handle?  No, you’re pushing the blade when you’re opening up the knife.”  Galluzzo also challenged the characterization of the mechanism on the knife as a ‘button’: “You could compare that where — to what you think is a classic switchblade you may have seen in old movies like West Side Story, Twelve Angry Men or Rebel Without a Cause  .  .  .  where it’s the switchblades that people have.  Maybe you’ve seen one in real life or maybe on TV, you would think of a long thin handle and right in the middle of that long thin handle, there is a button, a button you have to depress like on a computer keyboard, press that button in the middle of the handle and out pops the long, thin blade that’s about the same length as the handle itself . . . . That’s the kind of button that this statute is [] talking about.  This is not a button that you’re actually pushing.  What you’re actually pushing, again, is the blade itself.”

The jury presumably agreed with the defense’s interpretation of the statute, and returned a not guilty verdict.