Articles Posted in WEAPONS OFFENSES

The United States Supreme Court has issued a ruling applying the US Constitution, Second Amendment right to “keep and bear arms” to State and local gun regulation. Ruling in the case of McDonald v. Chicago a 5 to 4 majority of justices decided for the first time that both State and local gun laws must not violate the Second amendment. While this is a landmark decision, it answers very few questions. It did not give any guidelines as to what regulations were permissible and what regulations were not and it even left to the lower Court the issue of whether the Chicago Law in question violated the Second Amendment.

This decision is likely to spur more litigation than it resolved by opening up litigation to strike down local gun regulation all over the Country. New York gun laws which are among the toughest in the Country will almost certainly be challenged under this ruling.

Tilem & Campbell, PC is criminal defense firm that handles a vast array of gun and weapons related cases in both State and Federal Courts and maintains the website www.handgunattorney.com. Senior Partner, Peter H. Tilem is a former prosecutor assigned to the Firearms Trafficking Unit of the New York County District Attorney’s Office, is a member of the NRA and has vast experience in handling gun and weapons related litigation.

As experienced criminal defense lawyers we have been seeing an increase in the number of people contacting us after being arrested with a knife. In our continuing effort to educate the public about criminal law, this series will summarize New York State and New York City Knife laws. In Part 1 we discussed what are referred to as “per se” weapons. Weapons or in this case knives that mere possession of constitutes a crime. In part 2 we will discuss knives that are only illegal if you have intent to use that knife illegally against another person but as you will see there is a twist to that requirement. In Part 3 we will discuss knife laws that are particular to New York City only and do not apply other places in New York State.

New York State Penal Law §265.01 (2) makes it illegal to possess any dirk, razor, dangerous knife, dagger or stiletto only if there is intent to use it unlawfully against someone else. The problem develops in Penal Law §265.15 where the law actually creates a presumption that a person who possesses a dagger, stiletto, dirk or dangerous knife has the intent to use it unlawfully against someone else if it is made, adapted or designed primarily for use as a weapon. And its hard to know exactly what that means. What does it mean that a knife is made primarily for use as a weapon?

The answer is unclear. In Queens a Criminal Court judge ruled that possession of a dagger without more was sufficient to make out a charge of Criminal Possession of a Weapon in the Fourth Degree. People v. Nwogu. In Manhattan, another Criminal Court Judge ruled that possession of a knife combined with a statement that the knife was for self defense was enough to make out a charge of Criminal Possession of a Weapon in the Fourth Degree. The judge reasoned that by stating that it was for self defense it shows that the defendant considered the knife a weapon and therefore the presumption applied but that judge ruled that if the defendant had remained silent that the evidence would be insufficient. People v. Richards.

As criminal defense attorneys who handle a large number of gun and weapon charges we have seen an substantial increase in clients who come to us with charges relating to possession of knives. Now, in the wake of the New York Post article which reported that the Manhattan District Attorney’s Office has entered into a deal with retailers such as Home Depot, Eastern Mountain Sports and Paragon Sports to stop the sale of many folding knives it seems appropriate to review the legality of knives in New York.

As we wrote in our April 2, 2009 blog, New York State Penal Law sec. 265.01 makes it a crime to possess any of the following knives: a gravity knife; switchblade knife; pilum ballistic knife; metal knuckle knife; and cane sword. The problem starts with the definition of “Gravity Knife” from the New York State Penal Law. Sec. 265.00 (5) states that a Gravity Knife is any knife that can be opened by gravity or the application of centrifugal force. What the latter part means is that if the knife can be “flicked” opened (centrifugal force), it is illegal to possess. It gets more complicated if you think that a large, experience police officer can probably “flick” open any knife given a couple of attempts and enough force and so virtually any lock-blade pocket knife can probably be considered a switchblade. It is this “gravity knife” issue that caught up major retailers like Home Depot.

Additional issues arise from the “exemptions”, which are defenses listed in the Penal Law. These are codified in Penal Law §265.20(6) an make it legal to possess a gravity knife or switchblade for use while hunting, fishing or trapping by a person carrying a valid license (for hunting, trapping or fishing).

New York criminal defense law firm Tilem & Campbell scored a major victory in another New York gun case, this one involving a loaded pistol at LaGuardia Airport. The client, was arrested in LaGuardia airport after he attempted to check a loaded pistol in at the airline ticket counter. The ticket agent called police who arrested him and charged him with Criminal Possession of a Weapon in the Second Degree under New York’s relatively new gun law that requires a mandatory minimum of 3 1/2 years in prison for possession of a loaded firearm. The passenger who was in New York on business had a license for the pistol; from another state which was not valid in New York State.

The case was resolved last week when the client pled guilty to Disorderly Conduct which is not a crime in New York State and paid $370 in fines and Court costs. The felony charge was dismissed and the client will have no criminal record as a result of the reduction.

Cases such as this are common in Queens which has two busy airports within its borders. Gun laws are very different in New York than they are in most other places in the United States so unsuspecting, law-abiding citizens often get caught in New York transportation hubs such as the local airports.