New York Criminal Lawyer Blog

Manhattan District Attorney Cyrus Vance, Jr. is trying to be more proactive when it comes to crimes involving knives. Last year, In Manhattan alone, there were 2,269 arrests involving the possession of illegal knives. Mere possession of certain weapons such as "gravity knives" and "switchblades" is punishable as an "A" misdemeanor pursuant to New York Penal Law 265.01 - Criminal Possession of a Weapon on the Fourth Degree.

According to the District Attorney's website, DA Vance, Jr. has reached an agreement with national and local retailers of knives that are illegal in New York. Retailers, such as Home Depot, Eastern Mountain Sports, Paragon Sports, and four others, will enter into deferred prosecution agreements. The law permits these companies, like individuals, to be prosecuted for crimes - a fact recently addressed by DA Vance in an earlier press release. In return, these companies will provide the Manhattan District Attorney's Office the past four year's profit. In total, that amount is approximately $1.9 million. Additionally, the companies will finance an education campaign regarding illegal knives. Lastly, Frederico Gebauer, a managing director at Kroll, Inc. and former Manhattan prosecutor, will serve free of charge as the District Attorney's "Knife Sales Monitor" to review and keep track of knife sales. Hopefully, the Manhattan District Attorney's Office recognizes that many upstanding people who possessed knives for legitimate purposes, such as for work, purchased these knives from these and other stores assuming (with good reason) that there was nothing illegal about it.

According to the Manhattan District Attorney's Office press release, "the $1.9 million will be distributed to the City and State: 10 percent will be given to the State ($190K); 51 percent will be given to the City ($969,000); and the remainder ($741,000) set aside for our law enforcement partners." It is interesting to note that District Attorney Vance, Jr.'s approach to redistributing the wealth and detailing how the monies will be shared differs from the past when New York City complained of not getting a larger piece of the forfeiture pie.

This program and investigation by District Attorney Vance, Jr. is not over despite its apparent success to date. In fact, the District Attorney's Office website is clear:

"The District Attorney’s Office has begun Phase II of the investigation, targeting out-of-state vendors selling to New York residents – which is a serious crime. Those companies are opening themselves to prosecution to the fullest extent of the law."

For further information on Criminal Possession of a Weapon in the Fourth Degree and knife crimes, please follow the highlighted link.

Crotty Saland LLP is a New York criminal defense firm. Prior to founding the practice, the New York criminal defense attorneys at Crotty Saland LLP served as prosecutors in the Manhattan District Attorney's Office.

The New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland LLP routinely get telephone calls from or represent individuals charged with Criminal Possession of a Weapon in the Fourth Degree in violation of New York Penal Law 265.01. Often times the story starts off the same. Not knowing it was crime to possess certain knives, a person is stopped after the police observe the clip of a knife outside their pocket. Ultimately, a knife is recovered and the police claim that the knife is a "gravity knife." Whether their arrest is in Manhattan, Brooklyn, the Bronx, Queens or anywhere in New York, the crime is the same. That is, Criminal Possession of a Weapon in the Fourth Degree is a misdemeanor punishable by up to one year in jail. It makes no difference if the person is issued a NY Desk Appearance Ticket, put through the arrest process or it is their first brush with the law.

As I have noted in the past, New York Penal Law 265.01(1) is a per se offense, meaning, the possession of certain weapons is an automatic crime. Possession of a "gravity knife" is one of the specified weapons regardless if your intended use was for work or protection. Having said that, one imperative step, which is fairly obvious, is to ascertain if in fact the alleged "gravity knife" is in fact a "gravity knife." As both a prosecutor and a New York criminal defense lawyer I have seen police make a mistake as to the nature if the knife. In those cases where the weapon is wrongly alleged to be a "gravity knife" and there is no intent to use the knife in a criminal way, the case may be one which should be dismissed.

Although it seems fairly easy, a dispute may arise as to the nature of the knife and wether or not it qualifies as a "gravity knife." Simply put, a "gravity knife," defined under New York Penal Law 265.00(5) is a "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 in place by means of a button, spring, lever or other device.” Again, seems fairly straight forward, right?

Well, what if that alleged "gravity knife" is a "butterfly knife?" What if the knife is one that opens with the force of gravity into place, but, unlike a true "gravity knife" it does not lock into place? Is there a violation of New York Penal Law 265.01(1)? If not a violation of New York Penal Law 265.01, is there a violation of any law?

The easy answer to this question is that the "butterfly knife" as described above is not a "gravity knife" and therefore, your mere possession of it is not a violation of New York Penal Law 265.01(1). See People v. Zuniga, 303 A.D.2d 773 (2nd Dept. 2003). However, do not think that because it is not a per se weapon possessing a "butterfly knife" may never be criminal. In fact, the possession of any knife with a blade size equal to or exceeding four inches is a violation of the New York City Administrative Code (10-133). Although only a violation, if you possess this knife, or any object for that matter, with the intent to use it unlawfully against another, you will face the "A" misdemeanor of Criminal Possession in the Fourth Degree pursuant to subsection two of New York Penal Law 265.01.

Lastly, and again equally important to know, New York law only requires that you knew you possessed a knife and not that you knew you possessed a particular type of knife. In other words, if you knowingly had a knife on your person, but you had no idea it was a "gravity knife," your lack of knowledge as to the type of knife will not be a defense to its possession.

The above concepts are relatively straight forward in the New York Penal Law. However, the legal decisions, case law and statutes continually grow. For further information on weapon offenses such as Criminal Possession in the Fourth Degree, please review the New York Weapon Possession & Crime section of the Crotty Saland Website or the New York Weapon Possession section of the New York criminal lawyer blog.

Founded by two former Manhattan prosecutors, the New York criminal defense lawyers at Crotty Saland LLP represent clients in all criminal matters throughout the New York City region.

The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland LLP are pleased to announce another victory for a client charged with Criminal Possession of a Weapon in the Second Degree for possessing a "loaded" firearm at John F. Kennedy (JFK) Airport in Queens. Although our client, a Florida teacher, was charged with New York Penal Law 265.03 and faced a mandatory minimum term of 3.5 years in prison if convicted of that felony, Crotty Saland LLP secured a disposition where he pleaded to Disorderly Conduct pursuant to New York Penal Law 240.20. Not only did his plea to this violation avoid incarceration, probation or community service, the plea did not give our client a criminal record at all.

Unfortunately, many honest people who lack any criminal intent are swept into the New York criminal justice system for possessing firearms (pistols, hand guns, revolvers, etc.) without a proper permit to do so. Unwittingly, these people visit New York with the firearm thinking that it is "OK" to possess it in New York City because the have a license or permit to have that firearm in their home state. Often times, when they return home through a New York area airport such as LaGuardia and JFK in Queens, they check the firearm and end up getting arrested. Compounding matters, the firearm is legally loaded, albeit not physically, because the ammunition or bullets are in the hard case along with the gun. The message here is clear. Do not bring your firearm to New York unless you have the proper license(s) in New York State and New York City to do so.

It should go without saying that no two cases are the same and the results in one criminal matter do not guarantee similar results in a case that appears the same. Having said that, you should consult with a New York criminal defense attorney and keep yourself educated on the laws involving guns, pistols, revolvers and other firearms so that you can avoid the embarrassment and devastating impacts of an arrest.

For further information on Criminal Possession of a Weapon including New York gun and firearm crimes as well as information regarding gun arrests at New York airports, please follow the highlighted link. For information regarding legal decisions and various weapon statutes in New York, please review the New York Criminal Lawyer Blog section on weapon offense.

Crotty Saland LLP is a New York criminal defense firm representing clients in all criminal investigations and arrests. Founded by two former Manhattan prosecutors, the New York criminal defense attorneys at Crotty Saland LLP represents clients throughout the greater NYC area.

New York State requires under certain circumstances that specific injuries or wounds must be reported to the police. In fact, pursuant to New York Penal Law section 265.25, failure to report certain wounds by individuals such as an attending or treating physician (mandated reporters) is an "A" misdemeanor punishable by up to one year in jail.

According to New York Penal Law 265.25

Any time an individual is treated at a hospital or medical facility for a wound or injury from a gunshot or bullet (whether it is a grazing, penetration, etc.), that injury must be reported "at once" to local law enforcement. Other injuries that must be reported "at once" include any injury or wound that is likely or may result in death from weapons such as blades, knives or similar objects.

Mandated reporters of these types of injuries include: (a) the physician or doctor attending or treating the case; or (b) another person in charge (regardless if they are a physician or not), whenever the case is treated in a hospital or other institution.

Despite the law above, this statute does not apply to the military and law enforcement where the injury is sustained in the line of duty.

Obviously, failure to report the above injuries may result in an arrest or a conviction. Beyond this immediate problem, however, is the reality that one may also face issues with certification, licensing or employment while the case is pending and if there is a criminal disposition.

Crotty Saland, LLP is a New York criminal defense firm founded by two former Manhattan prosecutors with experience representing physicians, lawyers, teachers, individuals employed in finance, and other professionals in criminal investigations and arrests.

For further information on crimes involving weapons and violent crime including New York Penal Law sections 265.01, 265.02 and 265.03, please review the New York Weapon Possession section of our website or the New York Weapon Possession section of the New York Criminal Lawyer Blog.

Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys at Crotty Saland LLP, have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a "primer" for those not familiar with this offense and the strict liability it seems to impose on the accused.

A person is guilty of Criminal Possession of a Weapon in the Second Degree (NY PL 265.03) when:

(1) with the intent or purpose to use the firearm (handgun, pistol, revolver, etc.) you possess a (a) machine gun, (b) loaded firearm (loaded has a much more liberal legal definition than bullets physically in a gun) or (c) a disguised gun; or

(2) you possess more than five firearms (it can be different types such as revolver, pistol, etc.)

(3) you possess a firearm that is loaded (intent to use unlawfully not required!!). Generally, there is no felony if the possession is in your home or place of business.

New York Criminal Possession of a Weapon in the Second Degree is a C violent felony punishable by a minimum of three and on half years and up to fifteen years in state prison.

Make no mistake, a conviction for this offense will land you behind bars for at least a few years to well over a decade. While intent to use the firearm unlawfully is an element of NY PL 265.03(1), it is not an element or requirement under NY PL 265,03(3). In other words...just having the loaded firearm (the law does not actually require the bullets to be in the chamber/cartridge/cylinder) without a permit outside your home or place of business without the slightest malicious intent is punishable by at least three and one half years.

Although the statute is very clear and prosecutors are often unsympathetic to people carrying guns without permits, there still may be a defense that you can set forth. Did the police search you properly? Was the gun legally "loaded?" Is the possession based on a legal presumption? Are there mitigating circumstances? Did you possess the firearm in an area airport and properly checked it?

As stated above, Crotty Saland, LLP has had tremendous success representing clients charged with possessing loaded firearms. Our clients have not only benefited from our experience, but we have been legal analysts and quoted on gun crimes in the national, regional and local media from Sports Illustrated Online to the New Jersey Star-Ledger and the AM-NY. If you are accused of a crime involving weapons, no attorney can guarantee a particular outcome, but we will unquestionably fight to protect your rights and freedom.

The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland LLP represent clients throughout New York City and the region.

As I have noted in the past, possession of contraband, whether it is narcotics or a loaded firearm, may be constructively possessed or based on a legal presumption found in the New York Penal Law. In the area of Criminal Possession of a Weapon in the First, Second, Third and Fourth Degrees, pursuant to New York Penal Law sections 265.04, 265.03, 265.02 and 265.01 respectively, that legal presumption is codified in New York Penal Law section 265.15. Although subject to certain nuances which must be addressed in each case by your criminal defense attorney, the following is one specific legal presumption found in New York Penal Law 265.15(3) as it relates to this blog entry and a recent court decision:

"The presence in an automobile, other than a stolen one or a public omnibus, of any firearm, large capacity ammunition feeding device, defaced firearm, defaced rifle or shotgun, defaced large capacity ammunition feeding device, firearm silencer, explosive or incendiary bomb, bombshell, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, dagger, dirk, stiletto, billy, blackjack, plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub or slungshot is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except under the following circumstances: (a) if such weapon, instrument or appliance is found upon the person of one of the occupants therein; (b) if such weapon, instrument or appliance 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; or (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."

The presumption above is relatively clear, if not long and wordy. If there is a loaded firearm, or any weapon described above, in a non-stolen vehicle, subject to the exceptions, everyone can be charged for possessing that weapon. A natural question that follows this presumption is as follows: What if a weapon is discarded from the vehicle while the police are in pursuit? Would the "car presumption" apply if the weapon is no longer in the vehicle at the time of the recover? Could all those in the vehicle be charged based on that presumption? According to a Nassau County Supreme Court Justice, the answer is "yes."

Continue reading "Loaded Firearm Recovered Outside Vehicle: NY Supreme Court Finds that Possession of Firearm "Car Presumption" (NY PL 265.15) Still Applies" »

The Brooklyn District Attorney's Office has announced that along with the 105 count indictment against Watson Joachin and Ryan Woodard for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.

According to to the Brooklyn District Attorney's Office:

"The indictment includes charges for the sale or possession of 46 guns – including 28 semiautomatic pistols, six revolvers, three assault rifles, four sawed-off shotguns, and five rifles – to undercover detectives. On four occasions, detectives purchased a total of 40 guns. A fifth sale was arranged, but instead of carrying it out, officers raided the defendant’s Brooklyn safe house and 2 confiscated six additional guns. Through the investigation, ten additional guns were taken off the streets."

"Investigators believe the guns, worth more than $40,000, were primarily purchased in Florida. Some were brand new, with safety stickers and barrel plugs affixed. Others had been defaced, meaning their serial numbers had been removed."

The defendants are charged with Criminal Sale of a Firearm in the First Degree, Criminal Sale of a Firearm in the Second Degree, Criminal Sale of a Firearm in the Third Degree, Criminal Possession of a Weapon in the First Degree, and Criminal Possession of a Weapon on the Second.

Criminal Possession of a Weapon in the First Degree, pursuant to NY Penal Law 265.04, and Criminal Sale of a Firearm in the First Degree, pursuant to NY Penal Law 265.13, are both "B" felonies punishable by up to 25 years in prison. Criminal Sale of a Firearm in the Second and Degree, pursuant to NY Penal Law 265.12, and Criminal Possession of a Weapon in the Second Degree, pursuant to NY Penal Law 265.03, are both "C" felonies punishable by up to 15 years in state prison. Criminal Sale of a Firearm in the Third Degree, pursuant to NY Penal Law 265.11, is a class "D" felony punishable by up to 7 years in state prison.

While I can only speculate as to the scope of the evidence, investigations such as this are often accompanied with "wires," video surveillance, search warrants and other recording devices. These defendants, innocent until proven otherwise, have a long road ahead of them and are charged with crimes that the Brooklyn District Attorney's Office will like vigorously pursue for significant sentences.

Crotty Saland, LLP is a criminal defense firm located in New York, NY. Founded by two former Manhattan prosecutors, Crotty Saland, LLP represents clients in criminal matters throughout the metropolitan area.

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Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can "bump up" or raise the level of your crime from a misdemeanor to a felony. The basis of this "bump up" to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Pursuant to Penal Law section 265.02(1), a person is guilty of Criminal Possession of a Weapon in the Third Degree if such person commits the crime of Criminal Possession of a Weapon in the Fourth Degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime. That is right...if you were ever convicted of a misdemeanor Trespass, Petit Larceny for shoplifting, or even Theft of Services for jumping a turnstile and you are now arrested for having a switchblade in your pocket, prosecutors can charge you with a felony. The ramifications are enormous as the misdemeanor is punishable by up to one year in jail and the felony by up to seven years in state prison.

If you have a prior criminal record and you have been arrested for the misdemeanor offense of Criminal Possession of a Weapon the Fourth Degree do not compound a bad situation. Not only may you be charged with a misdemeanor for possessing the alleged weapon even without the intent to use it unlawfully (weapons such as metal knuckles, gravity knives and switchblades are "per se" weapons or automatically considered weapons under NY law regardless of how they are being used), but you may find yourself charged with a felony as well.

Crotty Saland, LLP is a New York City criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland, LLP represents clients in all criminal matters from weapon crimes to white collar offenses.

As I have explained to my readers numerous times in the past, mere possession of a loaded firearm outside your home or place of business without a permit is punishable as a "C" violent felony. This offense carries a minimum sentence of three and one half years in state prison if that possession is without a license and the district attorney does not make you an offer. Whether you mistakenly brought the gun to New York from a state you had a license thinking it was legal (give Plaxico Burress a ring on that) or you knowingly had a stolen revolver, the potential crime is the same. However, consult with your NY criminal defense attorney because this charge, while more severe than other crimes, is not the only charge you may face.

Pursuant to Penal Law section 265.02, you can be charged with a "D" violent felony punishable by a minimum of two years and up to seven years in state prison for possessing an unloaded firearm. Specifically, a person is guilty of Criminal Possession of a Weapon in the Third Degree when such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun. This crime does not require that the gun be loaded.

According to the Penal Law, "Deface" means to remove, deface, cover, alter or destroy the manufacturer's serial number or any other distinguishing number or identification mark. It does not matter whether the numbers are changed or scratched out.

To make matters worse and as I have noted in an earlier entry, according to Penal Law section 265.15, the possession by any person of a defaced machine-gun, firearm, rifle or shotgun is presumptive evidence that such person defaced the same.

If you have been arrested or charged with a crime relating to possessing a weapon, contact the former Manhattan prosecutors and criminal defense attorneys at Crotty Saland, LLP.

Follow Crotty Saland, LLP on Twitter at DefenseLawyerNY.

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because you read Crotty Saland, LLPs earlier entry on weapon possession.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether "In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law §§ 265.02[1], 265.01[1] ), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?"

The Court answered the question of knowledge by finding that "[a]lthough the statute includes no express element of mental culpability and the offense has often been referred to as a crime of 'strict liability,' existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon."

Even beyond the Court's decision that knowledge is an element of the crime, a review of the jury instructions for the charge of 265.01 as it relates to switchblade knives further illustrates the knowledge requirement. A person is guilty of violating this statute when “that person knowingly possesses any ... switchblade knife.” The jury charge also states that “[a] person knowingly possesses [a switchblade knife] when that person is aware that he or she is in possession of such [switchblade knife]” (CJI 2d N.Y. Penal Law § 265.01[1] ).

Although the First Department's apparently requires that some form of knowledge be established for a conviction of this offense, each case needs to be examined on an individual basis. Whether there is a valid defense or not, your criminal counsel must do his "homework" and ascertain the strongest approach to protecting your rights. This case and others like it may be that defense you are looking for.

Plaxico Burress, the former All-Pro wide receiver for the New York Giants, pleaded guilty in Manhattan Supreme Court today to Attempted Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 110/265.03. Although Burress had been facing a minimum of 3.5 years in state prison, prosecutors agreed to offer a lighter sentence of 2 years in state prison followed by 2 years of post-release supervision.

Despite Burress' best efforts for "jury nullification," a Grand Jury indicted him for an offense that did not require any intent to commit a crime. In other words, his mere possession of the loaded firearm outside his home or place of business without a permit would have landed him behind bars for up to 15 years. From a legal standpoint, although the minimum sentence on a plea was 3.5 years, by allowing Burress to plea to the attempted crime, as opposed to the actual completed crime, reduced the offense from a "C" violent felony to a "D" violent felony. Under New York law, a sentence of 2 years is a legal disposition for "D" violent crimes. Additionally, the term of post release supervision is mandatory regardless of which offense he pleaded to.

The Manhattan District Attorney's Office certainly did not treat Burress as the hometown hero. At the same time, he wasn't treated more severely than any other denizen of the city under the same set of circumstances. If, for example, the police merely arrested Burress for carrying a loaded firearm licensed outside of the state or the police arrested him for possessing a gun with an out of state permit locked away in a case to check at an airport, then a 2 year sentence would certainly be very harsh and arguably unjust. Under those examples, a defendant may take a felony plea, but a criminal defense attorney may be able to negotiate a misdemeanor deal as well. While not typical, people charged with the same or similar crimes have even avoided a criminal conviction all together if there are enough mitigating factors.

Burress' case, while the same technical crime, is clearly distinguishable from those circumstances. Here, Burress not only possessed a loaded firearm without a permit in New York, but his permit lapsed out of state. To ratchet up the severity of this offense even further, he endangered the lives of others by inadvertently firing the gun inside a nightclub. Unfortunately, these facts along with the injury he suffered compounded the situation and elevated the gravity of the offense in the eye's of the prosecution.

This case highlights the severity and seriousness of crimes involving guns. While each case is unique, if you possess a loaded firearm without a permit while you are walking the streets of New York you are putting yourself in grave danger with the law. Mitigating circumstances may reduce the crime or the sentence, but as Burress knows all too well, even the best attorneys may not be able to save you from yourself.

Now that the Manhattan Grand Jury has voted an indictment in the gun possession case against Plaxico Burress, Burress and his attorney only have a few ways for him to avoid any jail at all. While this is a highly unlikely scenario (like any New Orleans Saints team winning the Super Bowl), outside of "jury nullification," some legal analysts and attorneys believe that another means for Burress to attack the Criminal Possession of a Weapon charge can be found in the United States Supreme Court's decision in District of Columbia v. Heller. In that decision, the United States Supreme Court found that individuals had a constitutionally protected right based in the Second Amendment to possesses firearms even if a local DC ordinance implementing a ban on guns said otherwise. Sounds great for Burress, right? Well...not so fast.

The United States Supreme Court decision in Heller slapped down a particular ordinance in the District of Columbia that amounted to a ban on arms. As noted in a decision published today in People v. Kenneth Kirby, a Suffolk County District Court judge found that:

"New York State Penal Law §265 under which the Defendant is charged does not effect a complete ban on handguns but rather has in effect a licensing requirement to legally possess a handgun (see, PL §265.20[a][3]). In the matter at hand, the Defendant traveled from Texas with a handgun allegedly given to him by his grandfather for the purposes of self-protection. It is further alleged the Defendant does not possess a valid New York State license to possess a handgun in his residence in New York. Licensing is an acceptable regulatory measure and unless one holds a license to so possess in New York, possession of a firearm remains a criminal act."

Well, if the Brooklyn decision involving Heller was first down, the Suffolk decision was second down, Burress may go for it again with Heller on third down in Manhattan Supreme Court. Unfortunately, the United States Supreme Court has already found that the Second Amendment does not bind the states and does not represent an unlimited right.

This is looking like fourth and long.

Robert Morgenthau has a well coached team. He certainly had an advantage out of the gate with a lot of “Division I” prosecutors. When it came time to hit the field, his pass rush was relentless and his secondary was all over Plaxico Burress. In fact, Burress didn’t stand much of a chance of corralling in the “long ball” of "jury nullification." Did Burress fumble before a Manhattan Grand Jury or was his quarterback sacked before he could toss the ball the distance of the field? I don’t know. I wasn’t there. Regardless, the Manhattan District Attorney’s Office has a “Giant” lead going into the fourth quarter and I don't believe that Burress will display any game winning heroics.

So what happened? What kind of second half should we expect?

As I explained to Sports Illustrated Online, when Burress testified he attempted to sway the Grand Jury to not just understand how he lacked any criminal intent, was remorseful and the firearm was legally purchased/possessed in another state, but that the Grand Jury should disregard that law. This is the concept of "jury nullification." Unfortunately for Burress, the law of Criminal Possession of a Weapon is quite clear. Criminal intent is not an element of NY Penal Law 265.03(3). Let me make that clear in case you missed it or I stuttered…Criminal intent is not an element of NY Penal Law 265.03(3). That's right, merely possessing a loaded firearm outside one’s home or place of business and without a permit to do so is a “C” violent felony punishable by a minimum of 3.5 years and a maximum of 15 years in prison.

There have been some attorneys who believe Burress did the right thing by testifying in the Grand Jury. One self impressed legal blogger even boldly exclaimed that Burress' attorney “nailed” it (boy was he foolish...I hope he has never told a client that "he nailed it" before!). If it worked and Burress had convinced the Grand Jury that an indictment was not the best route, his attorney would certainly be covered in Gatorade right now.

The countless coaches of the criminal courts can argue whether the strategy to put Burress in the Grand Jury was the right decision, but I think it is fair to say that in Burress’ case, once negotiations fell apart, what was his choice? Take two years or try to beat the case in the Grand Jury. Arguably, from a career perspective, how could Burress not have fought the case? 3.5 years or 2 years to his football career may have been a permanent termination of his contract, a/k/a, career, either way. That being said, if he recognized the gravity of the evidence against him and had taken responsibility early, he would have served a significant portion of his time already. While I am confident Burress and his attorney grasp the strength of the case, I am also confident they recognize what is/was at stake. For all of us reading this article and surfing the web…it’s much easier to play armchair quarterback then actual quarterback.

So where does this leave Burress? The prosecution may or may not re-offer the 2 years now that the Grand Jury has indicted him. As a prosecutor in Manhattan for 7 years I rarely, if ever, made the same offer post-indictment. Even it was re-made, Burress might reject it anyway. His attorney will certainly attack the case legally: Was the Grand Jury proceeding defective? Although it is not likely, do New York’s weapon statutes go too far as to fly in the face of the Second Amendment as we saw in the District of Columbia v. Heller (In Heller, the District of Columbia’s ban on an entire class of arms was found to be unconstitutional. A Brooklyn Supreme Court Judge recently found that the decision had no bearing on the New York statute)?

Maybe Burress can convince a trial jury he is remorseful and he lacks any criminal intent. As noted (again!), however, criminal intent is not an element. Even so, he may argue that he is an athlete, had a “bull’s eye” on his back and only had the gun for self defense. I mean, he is Plaxico Burress! As compelling as that sounds, if I still had on my “prosecutor hat” (they took it from me along with my “get out of jail free card” when I resigned), I would have a field day with this argument.

Is it Burress’ position that if you are an athlete, in the public eye, drive a nice car, have nice jewelry, etc. you should be held to a different standard (can someone say “ego?”)? Is there a “reasonable person standard” that dictates your “average Joe” can’t carry a gun if he wears Gap jeans and drives a Honda unless he has a permit, but an “affluent person standard” that states that if you are famous, drive a Mercedes or have some “bling,” you don’t need a permit? Moreover, if he was so concerned and affluent, what was he doing out without security or why didn’t he apply for a permit like everyone else who legally carries a firearm in NYC?

Taking this argument further, Burress likely argument is that he would only have used the gun if he was confronted or put in real imminent and life threatening danger. Yet, who would establish this level of danger? If two men approached him merely with their fists and said “give us your earring,” could he respond with the force of a firearm? Is that a legal self defense? Obviously, this is a bare bones assessment and brandishing or using a firearm may ultimately constitute a legal self defense under the right set of facts, but a hypothetical situation that never could truly be answered unless it actually happened.

Only time will tell us what happens to Burress’ freedom and future. He will be arraigned in Manhattan Supreme Court on the indictment. His attorney will file a motion or motions to challenge the Grand Jury proceeding and to make other legal arguments. I would anticipate that behind the scenes the conversations will still take place as to plea deals. It may take four, five or six months before we find out whether Burress’ attorney was successful with his motions or the case becomes one of the trials of the decade and Burress the unfortunate central protagonist in a ready-made Law and Order special.

The game is not over...yet. We have only reached half time. Burress has a tremendously skilled attorney and advocate. In fact, one of the best. But I'll tell ya' what...I wouldn’t want to be in Burress’ cleats right now.

The Manhattan based criminal defense law firm, Crotty Saland, LLP, is pleased to announce that Sports Illustrated Online and the Vault.Com have once again sought out one of our criminal defense attorney's insight regarding Plaxico Burress' gun possession case (Criminal Possession of a Weapon in the Second Degree pursuant to New York Penal Law 265.03). Jeremy Saland, one of the criminal defense attorneys, drafted two articles for the Vault.Com regarding the Grand Jury proceeding in general as well as an analysis of Mr. Burress' decision to testify before that body. Moreover, CNNSI.Com utilized Mr. Saland's experience as a former Manhattan prosecutor and criminal defense attorney in their piece on Plaxico Burress as well.

Crotty Saland, LLP is a criminal defense firm representing clients throughout the NYC area for white collar and violent crimes. Started by two former Manhattan prosecutors, Crotty Saland, LLP utilizes the experience they have from both sides to zealously advocate for their clients, develop legal strategies and implement their clients' defenses.

In the even that you or a loved one is under investigation, arrested or charged with any crime, contact Crotty Saland, LLP.

With the recent media attention over the gun possession charge against Plaxico Burress (he is back in Manhattan criminal court this coming week, but the matter will be adjourned until September because there is no deal in place), New York criminal defense attorneys, such as the former Manhattan prosecutors and criminal defense lawyers at Crotty Saland, LLP, are keeping an eye on how the charge of Criminal Possession of a Weapon resolves itself in this case. In fact, Jeremy Saland, one of the founding partners who served for seven years under Robert Morgenthau, has been immersed in the case since its inception as a legal analyst on gun crimes as it relates to Mr. Burress for CNNSI.Com, the New Jesey Star-Ledger, and the AM NY. While Crotty Saland, LLP has been extremely successful in representing individuals charged with carrying a loaded firearm, the best defense is knowing the law in New York State so that you do not put yourself in a situation where you may violate the law. Therefore, the subject of this entry is going to deal with certain legal presumptions that apply to gun possession that are found in the New York Penal Code.

Pursuant to Penal Law 265.15 there are certain legal presumptions that apply to guns in connection with one's intent to use that firearm unlawfully as well as defacement of the firearm. While this entry will not deal with every presumption, I will address some of the more common ones as follows:

Continue reading "NY Criminal Defense and Presumptions: Criminal Possession of a Weapon - Guns, Pistols and Firearms" »

You have just been arrested for Criminal Possession of a Weapon for possessing a loaded firearm, gun, rifle or revolver. You tell your NY criminal defense attorney that the handgun was not loaded. After all, you had the ammunition locked away in the same carrying case as the gun while checking it at JFK or Laguardia Airports, but the bullets were not physically in it. In a different scenario, you explain to your criminal defense lawyer that your handgun was in a holster and empty while the bullets where in a pouch in your other pocket. How is it, you ask, that you are being charged with Criminal Possession of a Weapon in New York if the ammunition was not actually inside the gun?

The answer to this question is a fairly simple one. Pursuant to Penal Law Section 265.00(15), "Loaded Firearm" is defined under the NY Penal Law as "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 the firearm." See People v. Walston
147 Misc.2d 679 (Kings County 1990) (Possession of shotgun shell where the shotgun was present was sufficient to find the shotgun loaded.)

While the definition and law listed above may be a shock to you, the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP have successfully represented and avoided criminal records for numerous individuals who possessed "loaded" firearms where they wrongfully believed they were "unloaded." This mistake, even with a valid permit from another jurisdiction, is potentially devastating for anyone. The firearm you were about to drive out of the state or properly check at the airport can land you behind bars for a minimum of 3.5 years and a maximum of 15 years. Before making this life altering gaffe, you owe it to yourself to become educated on the gun laws in New York and to contact experienced criminal defense attorneys to help you navigate the murky waters of New York State's gun laws.

The best criminal defense attorneys and lawyers know that the laws regarding Criminal Possession of a Weapon as it relates to loaded firearms, guns, pistols and revolvers in New York are some of the strictest and most severe in the nation. Unless you can either beat the case or work out a favorable disposition, if your are charged with Criminal Possession of a Weapon for possessing a loaded firearm outside your home or place of business and you do not have a permit to do so...you will face a minimum of 3.5 years in prison if convicted. It is just that simple.

Fortunately, the NY criminal defense lawyers and former Manhattan prosecutors at Crotty Saland, LLP have handled a significant number of these cases from both the defense and law enforcement side giving us a unique perspective on weapon crimes. This experience and knowledge was recently put to the test for the second time in as many weeks and once again we got a tremendous result.

Our client, a woman from the West Coast, was charged with Criminal Possession of a Weapon for possessing a loaded firearm outside her home and without a permit in New York. Although she lacked the permit in New York, we were able to establish that our client purchased the gun legally, had a permit in her home state, lacked a criminal record, and other mitigating factors. Without going into specific details (our "trade secrets" one might say!!!) we were able to negotiate a non-criminal deal for our client despite the fact that she was alleged to have physically possessed the loaded pistol. That's right - no criminal record or jail at all...not even a day of community service!

As I always note, the results in one particular case do not guarantee the same results on a different case with the same or similar charges. What Crotty Saland, LLP does guarantee, however, is that we will tenaciously fight for our clients, utilize our traning and experience as prosecutors and defense attorneys, and work with you to put forth a compelling defense to maintain your freedom, integrity and livelihood.

When you are charged with Criminal Possession of a Weapon for possessing a revolver, pistol, gun or other firearm, you need your NY criminal defense attorney to fight relentlessly for you. Sometimes that "fight" may be more creative than adversarial, but the best criminal defense lawyers must persevere on behalf of their clients regardless of the case. As NY criminal defense attorneys and former Manhattan prosecutors, we at Crotty Saland, LLP know this because we have successfully fought for our clients under the harshest circumstances. Not only have our clients benefited as a result of our knowledge and experience, but Crotty Saland, LLP has been sought out by CNNSi.Com, the Times-Ledger and the AM NY as legal analysts on the crime of Criminal Possession of a Weapon. Practicing what we preach and utilizing our experience, Crotty Saland, LLP is pleased to announce that we obtained an Adjournment in Contemplation of Dismissal for our client who was charged with Criminal Possession of a Weapon.

Our client faced the charge of Criminal Possession of a Weapon for possessing a loaded firearm in NYC. The complaint was very strong in that it was alleged that our client personally possessed both the revolver and the ammunition. Knowing that our client would face a minimum of 3.5 years in state prison if he was convicted, we put together an extensive "package" for the prosecution detailing many factors that should, and did, mitigate the severity of the offense and even the culpability of our client. We did so in an expedient manner and reached a disposition with the District Attorney's Office by the first adjournment after our client was arraigned in criminal court. Not only were we able to obtain a tremendous disposition on his behalf (the case is to be dismissed and sealed), it was completed quickly so that our client could put the incident behind him and move on with his life and career. Equally if not most importantly, our client's freedom remained intact.

Although the above case is unquestionably a success at many levels, each case is unique and requires diligent analysis so that the best defense can be implemented. What is successful in one criminal case involving the same charge may not be in another. Whatever the accusation or circumstances, Crotty Saland, LLP is ready and able to examine the facts, consult with you and your family and work to do what we can to preserve your liberty, integrity and livelihood.

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The felony charge of Criminal Possession of a Weapon as it relates to pistols, guns, revolvers and firearms, has been receiving the undivided attention of the media, criminal defense attorneys and even politicians since Plaxico Burress' arrest. In fact, at the time of Burress' arrest for gun possession in New York, many of these media outlets reached out to Crotty Saland, LLP to discuss the nature of the gun charge as well as the ramifications of the offense. CNNSI.Com as well as the AM New York utilized Jeremy Saland's experience as a former Manhattan Prosecutor and as a NY criminal defense attorney to analyze the incident and explain the applicable law.

Once again, Mr. Saland's knowledge and experience prosecuting and defending gun crimes was sought out by the media. The New Jersey Star-Ledger interviewed Mr. Saland and requested his legal analysis in the paper's coverage of Mr. Burress' court date earlier today.

As we know now, Mr. Burress' case was in fact adjourned into a "holding pattern" in Manhattan Criminal Court where the prosecution will likely do one of four things. The first possibility between today and Mr. Burress' next court date is that Mr. Burress may be indicted by the Grand Jury on the "C" felony where he faces between 3.5 to 15 years in state prison. A second possibility is that Mr. Burress agrees to accept an "SCI" or a Superior Court Information. This would allow Mr. Burress to avoid an indictment, but will permit him to plea to a lesser felony offense with less possible incarceration. A third option would be that the prosecution reduces the charges from a felony to a misdemeanor where the maximum term of jail would be one year. A fourth, albeit less likely option, would be for an alternate plea to be worked out where Mr. Burress would plea to a higher level crime and assuming he complies with certain requirements he would be able to withdraw the plea and enter a new plea to a lower level crime.

Like our readers, we do not know what conversations are taking pace between the parties behind closed doors. Whatever they may be, there is no guarantee as to what the end result will be. If you find yourself in a similar situation or charged with any crime, the criminal defense attorneys at Crotty Saland, LLP will make one very important guarantee - We will zealously fight for you to protect your rights and do our best to make all options available for your defense.

The NY criminal defense attorneys at Crotty Saland, LLP are routinely contacted by or represent people charged with Criminal Possession of a Weapon as it relates to switch blades and gravity knives. Individuals charged with this crime recognize very quickly that prosecutors in Manhattan, Brooklyn, Queens and the Bronx take these matters extremely seriously.

According to Penal Law 265.01(1), a person is guilty of Criminal Possession of a Weapon in the Fourth Degree when he possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star.

There are many factors that are critically important when analyzing whether or not you have a valid or legitimate defense to this crime. First and foremost, your criminal defense attorney should determine whether or not the search and seizure of your person was valid. Assuming it is, the second issue that needs to be addressed is whether or not the weapon you are alleged to have possessed actually falls within the definition in the penal law relating to that particular type of weapon. The the third issue is whether or not you "knowingly" possessed that weapon. For this particular entry we will address the definition of certain weapons. The other legal matters will be addressed at a later date.

Dealing with the first issue, whether the weapon you possess is the same as that defined in the penal law, we must go right to the applicable statute. Pursuant to Penal Law 265.00 and its various subsections, the following definitions establish the crime of Criminal Possession of a Weapon:

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.

5. "Gravity knife" means 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 in place by means of a button, spring, lever or other device.

5-a. "Pilum ballistic knife" means any knife which has a blade which can be projected from the handle by hand pressure applied to a button, lever, spring or other device in the handle of the knife.

5-b. "Metal knuckle knife" means a weapon that, when closed, cannot function as a set of metal knuckles, nor as a knife and when open, can function as both a set of metal knuckles as well as a knife.

Having these definitions readily available is so important to your defense. If you are accused of having a gravity knife, but instead of the blade opening with the force of gravity you have to pull it out, then it is probably not a gravity knife. If you are accused of possessing a switchblade, but it is a lock blade type knife then obviously it is not a switch blade. Moreover, if the knife does open with the force of gravity and is in fact a gravity knife, but you are accused of possessing a switchblade knife, then although your possession may be a crime, because you are charged with the wrong type of knife, a criminal defense attorney's motion to dismiss will be successful unless there is a superseding complaint drafted by the prosecutor.

Although one would think that all criminal defense attorneys make sure that the weapon their client is accused of possessing operates in the manner and fits the description of that particular weapon in the statute, this simple step is not always taken. While there may be a valid reason, confirmation of this fact is critical for the reasons described above. Equally significant, and a matter that will be discussed in the second entry dealing with this issue, is whether or not you "knowingly" possessed the weapon assuming it is in fact a weapon as described in Penal Law 265.00.

Despite a criminal defense attorney's best efforts, a Brooklyn State Supreme Court Justice ruled in a decision published yesterday that the United States Supreme Court's decision in the District of Columbia v. Heller does not prevent New York State from regulating guns, pistols and firearms within its boundaries.

Defendant, Albi Abdullah, was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law 265.01(1). The defendant had been arrested after police found him violation of an order of protection. When asked whether he had any weapons, the defendant admitted that he had a gun in a kitchen cabinet. The police then located an unloaded .25 caliber handgun.

The defendant's criminal defense attorney moved to dismiss the Criminal Possession of a Weapon charge arguing that "PL 265.01 is unconstitutional and that such charge constitutes a violation of defendant's Second Amendment right to keep and bear arms in his home for self protection, pursuant to the US Constitution., Amendments II and XIV; and pursuant to the holding of the US Supreme Court in District of Columbia v. Heller, 128 Sup Ct 2783 (2008). Defendant further supports his claim of unconstitutionality on the alleged arbitrary and capricious nature of the City's gun licensing process as managed by the New York City Police Department." The prosecution responded by arguing that "Heller, by its own terms, is neither applicable to nor binding upon the States, and that it cannot be interpreted to mean that the Second Amendment bars a state's reasonable regulation of gun possession." The court ultimately reviewed the case and agreed with the prosecution.

In denying the defendant's motion to dismiss, the court recognized that:

"The Supreme Court did specifically hold in Heller that the District of Columbia's ban on the possession of handguns in the home violates the Second Amendment (128 Sup Ct at 2821-22) but the Court also stated that the right to keep and bear arms as secured by the Second Amendment is not unlimited (supra, at 2816) and that the Second Amendment is neither applicable to nor binding upon the States (Heller, supra, 2812-13). The Court then chose not to address the validity of the District of Columbia's licensing requirement (supra, at 2819) and hypothesized that 'Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.'(supra, at 2822)."

The court further found that:

"Because New York does not have a complete ban on the possession of handguns in the home and because the District of Columbia is a federal enclave and not a State, Heller is distinguishable and its holding does not invalidate New York's gun possession laws or regulations. The Second Amendment has been recently held not to apply to the States and is not incorporated into the Fourteenth Amendment. (See Bach v. Pataki, 408 F 3d 75, 86 [2nd Cir, 2005]; Parker v. District of Columbia, 478 F 3d 370,391, n. 13 [DC Circuit, 2007]) Therefore, in New York, possession of a firearm remains a criminal act, pursuant to Penal Law Article 265, unless one holds a license to so possess, pursuant to Penal Law 265.20(3)."

Clearly, Heller's scope is not unlimited and does not prevent NY from regulating hand guns and other firearms. In fact, New York State's regulations are "alive and well." Arguably, NY has some of the most strict and severe gun laws in the nation. Mere possession of a loaded and unlicensed firearm outside one's business or home is punishable as a "C" violent felony by a minimum of 3.5 years in state prison to 15 years. That particular charge does not even require a showing that you had the intent to use the weapon unlawfully.

Whatever charge you are accused of, whether it be a violent crime of gun possession or a white collar crime relating to fraud, don't compound a criminal matter by retaining inexperienced counsel. Contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP so we can begin helping you get where you want and need to be.

According to the media, New York Giants All Pro wide receiver Plaxico Burress is turning himself in to the New York City Police Department for shooting himself in the leg this past weekend in Manhattan. As of now, it appears that he will be charged with Criminal Possession of a Weapon, a class "C" felony, punishable by a minimum of 3.5 years in state prison to a maximum of 15 years.

Unfortunately for Mr.Burress, the criminal law and consequences have changed significantly in recent years. The "old" law required that prosecutors prove not only that you possessed a loaded firearm (handgun, pistol, etc.), but that you had the intent to use it unlawfully against another. Now, the mere possession of a loaded firearm outside your home or place of business constitutes the same level crime. That is, possession alone is a "C" felony and the prosecution does not have to prove in any way that you, or in this case Plaxico Burress, intended to use that gun unlawfully against another person. Only 2-3 years ago, under the same set of facts, Mr. Burress would likely have been charged "only" with a "D" felony punishable by a minimum of 2 years in state prison and a maximum of seven years if the prosecution could not establish that the gun was possessed with the intent to use it unlawfully.

Although the charges and penalties are harsher then they were in the past, skilled criminal defense attorneys, such as the former Manhattan prosecutors at Crotty Saland, LLP, know how to analyze and pick apart a prosecutor's criminal case. While on its face the charges against Plaxico Burress seem overwhelming (hey, he shot himself in the leg!), not everything is as clear as it seems. While we don't know all the facts, questions and issues that will likely arise over the next few days might give prosecutors pause. For example, where is the gun and bullet that were part of the shooting? If the gun was not recovered in Manhattan, such as where a person is stopped with the firearm, is there a witness who can establish that the shooting took place at a particular location in the jurisdiction? In the alternative, is there a video? While nobody is likely to contest that there was a shooting, there needs to be some form of evidence that incident took place and the firearm was possessed in Manhattan.

While there are many ways to attack a prosecutor's case, an experienced and skilled eye is needed to find and investigate each detail. Time will tell whether Plaxico Burress' criminal defense attorney will be able to find or expose such a weakness. Irrespective of the outcome of his matter, if you find yourself in any criminal predicament, Crotty Saland, LLP is ready to aggressively fight to protect your rights, freedom, livelihood and integrity.

Criminal Possession of a Weapon in the Third Degree, a "D" Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to "elevate" weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That's right...any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

Well, what if you recently pleaded guilty to a crime, but you have not been sentenced when you are arrested for possessing that switchblade? Does this plea without a sentence equate to a previous conviction for the purpose of this statute?

As a general rule, when someone is deemed a predicate felon (a prior felony offense that will elevate a current felony offense) they must have been sentenced on the prior case (within the past 10 years) before their arrest on the new case. See People v. Morse.

This past June, however, the Court of Appeals upheld a felony conviction for Criminal Possession in the Third Degree, Penal Law 265.02(1), where the defendant had pleaded to an assault and had yet to be sentenced. Prior to his sentence he was re-arrested and indicted for swinging a machete at another individual. Rejecting the defendant's argument that one must be sentenced before they are deemed to be convicted, the Court of Appeals stated that "[s]ection 265.02 seems to embody the Legislature's judgment that an illegal weapon is more dangerous in the hands of a convicted criminal than in possession of a novice...regardless of whether sentence has yet been imposed for the prior crime." See People v. Montilla.

Make no mistake, while one must be sentenced on a prior crime before being found to be a "predicate felon" for the purpose of elevating the new felony crime, where the crime charged is a misdemeanor Criminal Possession of a Weapon, the defendant need not be sentence to raise the crime from a misdemeanor to a felony. Obviously, the level of exposure increases significantly with the felony charge. Therefore, retain an experienced and skilled criminal defense attorney to advocate for your rights and get you where you need to be.

You are carrying .22 caliber bullets in Manhattan or .38 caliber rounds in Brooklyn, but you don't have a permit to possess a handgun or pistol that utilizes the ammunition or to possess any firearm at all. Well, you may not have violated New York State Penal Law for Criminal Possession of a Weapon, but you are in violation of the New York City Administrative Code.

According to Administrative Code Section 10-131(i)(3) it is unlawful for any person not authorized to possesses a pistol or revolver within the city of New York to possesses pistol or revolver ammunition. Similarly, pursuant to Administrative Code Section 10-131(i)(4) it is unlawful for any person to authorized to possess a pistol or revolver of a particular caliber within the city of New York to possess pistol or revolver ammunition of a different caliber. Both of these Administrative Code violations are punishable as misdemeanors.

Although possessing the actual pistol or revolver without a permit is a significantly more serious offense punishable by at least three and one have years prison, the fact that New York City has its own laws to punish individuals who it deems are dangerous should be a wake up call to everyone. It's not merely the firearm that can land you behind bars, but the possession of the ammunition.

In the event you find yourself in situation similar to that described above, whether it be for possession of a pistol or only the bullets, contact a skilled criminal defense attorney who will not only advocate for you, but fight to make sure your rights are secured and your future preserved.