Articles Posted in Firearms

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Many juveniles in New York City are arrested every week and given a family court summons for a crime that would otherwise subject him or her to a permanent criminal record. A juvenile is “defined” in the Penal Law as a person under the age of sixteen years old. To be more precise, it is actually a defense to a criminal charge that the defendant was less than sixteen at the time the offense was allegedly committed. See Penal Law 30.00. Often times juveniles are arrested for such offenses as Criminal Possession of Marijuana in the Fifth Degree, Penal Law 221.10, Unlawful Possession of Marijuana, Penal Law 221.05, Petit Larceny, Penal Law 155.25, Assault in the Third Degree, Penal Law 120.00, Criminal Mischief, Penal Law 145.00, and Making Graffiti, Penal Law 145.60. However, in other cases, the charges can be more serious, especially where a victim has been killed or seriously injured or a felony charge, such as a drug sale, are involved.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters. A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing. The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing. It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases. If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases). The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility. The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call The Law Office of Matthew Galluzzo.

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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.”

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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…

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While it may seem somewhat counterintuitive, a “loaded” firearm is not a loaded firearm according to New York’s Penal Law. In common parlance, when one speaks of a loaded firearm, one thinks of a gun with bullets actually in it, such that the wielder need do nothing more than prep the gun by cocking the hammer and squeeze the trigger in order to fire.

The common-sense explanation notwithstanding, Article 265 of the New York Penal Law defines a loaded firearm as follows:

“Loaded firearm” means 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.

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The New York Penal Law makes it a misdemeanor to carry a variety of sharp weapons, such as gravity knives and switchblades. But even knives that you might not consider to be dangerous weapons can get you in trouble with the police. If you are found carrying a knife prohibited by the New York City Administrative Code (Section 10-133), you will probably receive a pink summons ticket or a Desk Appearance ticket, but you could even get arrested. A violation of this subsection is a violation and not a crime but it can be punishable by up to $300 in fines and/or as much as 15 days in jail.

NYC Administration Code § 10-133 prohibits the possession of the two main types of knives. First, subdivision (b) makes it illegal to carry a knife with a blade length of four inches or more. Obviously, the average chef’s knife has a blade that long, as do many folding knives used for hunting or fishing. Fortunately, subdivision (b) does permit you to carry such a knife “to or from a place where it is used for hunting, fishing, camping, hiking, picnicking or any employment, trade or occupation customarily requiring the use of such knife.” In our experience, though, police officers are frequently not persuaded by the explanation that the knife is used at work to open boxes, and will issue a ticket anyway. You can also avoid a conviction for this violation if you can show that the knife “is being transported directly to or from a place of purchase, sharpening or repair, packaged in such a manner as not to allow easy access to such knife while it is transported”. So, if you just bought a long kitchen knife from Bed Bath & Beyond, you can safely take it home so long as it remains in the package. There are various other exceptions for the four-inch blade rule that are rarely applied (see below).

But even knives with blades shorter than four inches can still get you in trouble if they are publicly displayed or worn. Subdivision (c) of NYC A.C. § 10-133 makes it illegal “for any person in a public place, street or park, to wear outside of his or her clothing or carry in open view any knife with an exposed or unexposed blade unless such person is actually using such knife for a lawful purpose as set forth in subdivision d of this section.” Basically, this means that should not carry your clip-on knife like this person.

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If you do not have a license to possess a handgun in New York, you could be in serious trouble if law enforcement officers catch you with a loaded one. Specifically, you could be charged with Criminal Possession of a Weapon in the Second Degree, a Class C violent felony (Penal Law Section 265.03), and even as a first time felony offender, you might be facing anywhere from 3.5 to 15 years in jail.

Generally, assuming that you were in fact in knowing possession of an unlicensed and loaded handgun, there are two main considerations for whether you will be charged with this Class C violent felony. First: the location of the possession. If you knowingly possessed the unlicensed and loaded firearm outside of your home or place of business, then you probably are going to be charged with the crime (Penal Law 265.03) and your reasons for having the gun are irrelevant. So, it does you no good to claim, for example, that you only possessed the gun for protection. (In fact, an admission like this only helps the prosecutor further prove your knowing possession of the gun.) If, however, you knowingly possessed the unlicensed and loaded handgun in your home or place of business, then you are not guilty of this charge unless you possessed it with the intent to use it unlawfully against another. Put another way, your intent in possessing the loaded handgun is relevant when it is inside your home or place of business. So, if you knowingly possessed an unlicensed and loaded handgun in your home, you may only be guilty of a misdemeanor (it would depend on your criminal record in that case). On the other hand, if a man threatens his wife with a loaded handgun inside his home, he could be charged with a violation of Penal Law Section 265.03(1), among other things. Keep in mind, though, that Penal Law Section 265.15 provides that knowing possession of a firearm is by itself presumptive evidence of possession with the intent to use it unlawfully against another; this effectively means that a defendant has to prove that he had innocent reasons for possessing the gun.

If you or a loved one have been charged with a violation of Penal Law 265.03 (Criminal Possession of a Weapon in the Second Degree) and need representation, consider contacting experienced criminal defense attorneys who have successfully represented numerous people charged with this crime and are prepared to assist you as well.

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Switchblade
Attorney employs technical defense to win Acquittal in Criminal Possession of a Weapon Case. Matthew Galluzzo, of The Law Office of Matthew Galluzzo 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:

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Lil Wayne will be sentenced today in Manhattan Supreme Court after pleading guilty to attempted criminal possession of a weapon in the second degree in October 2009. According to the New York Post, he is set to receive a one year sentence. It is interesting to note that this is the same charge to which wide receiver Plaxico Burress plead guilty in August 2009. Burress received a 2 year prison sentence. One difference between the two cases is that Plaxico Burress told his story to the grand jury, whereas Wayne refrained from doing so. There is, however, no reason to think that the D.A.’s office or the court in the Burress case held the fact that he testified against him when it came to the sentence, as Burress appears to have testified truthfully. The discrepancy in the sentence can probably be chalked up to the different circumstances under which each of the men were arrested. While Wayne only allegedly possessed a firearm inside his tour bus, Burress’s weapon was taken inside a busy nightclub and actually (although accidentally) discharged.

UPDATE: March 2, 2010: Lil’ Wayne’s sentencing was delayed on account of a fire in the courthouse. http://bit.ly/a3jsgQ

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