Criminal Possession of a Weapon in New York

March 5, 2012

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New York's statutory scheme for punishing criminal possession of a weapon is laid out in Article 265 of the Penal Law, and in its simplest terms it looks at three things: the nature of the alleged weapon; the way it's being used; and the identity and background of the person using it.

The punishment for criminally possessing a weapon can be severe, as this story from the Glens Falls Post Star illustrates: a Tanice Sumner of Queensbury, New York (who already had a felony DWI on her record, according to the article), was recently accused of threatening state troopers with a 'small kitchen knife'. Convicted of Attempted Criminal Possession of a Weapon in the Third Degree, she's now serving a sentence of 1½ to 3 years in state prison.

The term 'weapon' is a broad one. It can cover anything from a machine gun to such everyday items as rubber boots, handkerchiefs, spatulas, pens and pencils. But while a machine gun is always a weapon, a handkerchief - or a kitchen knife - may or may not be, depending on how the item is being used.

We'll get into that below.

Like a spatula, a kitchen knife is primarily a kitchen utensil. When used for slicing onions, it's not a weapon. But a kitchen knife is a dangerous instrument and it's a misdemeanor to possess it when it's "possessed ... with intent to use the same unlawfully against another." In Ms Sumner's case, it was claimed that she'd threatened state troopers with hers. If you are, in fact, holding law enforcement officers at bay with your paring knife, it's hard to argue you don't intend to use the same unlawfully against another. In that case, your intent has converted a kitchen utensil into a dangerous instrument and you have just committed Criminal Possession of a Weapon in the Fourth Degree.

Criminal Possession 4th is a misdemeanor, though. How do you convert it into a felony? There are a number of ways, but the easiest is to commit the misdemeanor when you have a prior felony on your record. Criminal Possession 4th then becomes Criminal Possession of a Weapon in the Third Degree, which is a Class D Felony.

Then there's the issue of 'attempt'. Attempt has nothing particular to do with criminal possession of anything, and is often a product of the plea bargaining process for the following reason.

How do you punish someone for an an 'attempt'? Essentially, you look at what level the completed crime would have been (Class B, Class C or, in this case, a Class D Felony) and take it down a notch. So an attempt to commit a Class D Felony is a Class E Felony.