Weapons. (Penal Law Article 265) Group: Natasha and Roxana. Weapons. Weapons Offenses. Common Definitions

Transcription

1 Weapons Weapons (Penal Law Article 265) Group: Natasha and Roxana First, we will define common terms Second, we will break the particular weapons offenses into elements Weapons Offenses Criminal Possession of a Weapon in the Fourth Degree (Penal Law [1], [2], [4], [5]) Criminal Possession of a Firearm (Penal Law b) Criminal Possession of a Weapon in the Third Degree (Penal Law [1], [7]) Criminal Possession of a Weapon in the Second Degree (Penal Law [1] [b]; [2]) Criminal Possession of a Weapon in the First Degree (Penal Law [1], [2]) Possess (Penal Law [8]) to have physical possession or otherwise to exercise dominion or control over tangible property; 1

2 Knowingly to knowingly possess an item means to be aware that you are in possession of that item (Penal Law [2]); Intent (to use unlawfully) - means conscious objective or purpose (People v Pons, 68 NY2d 264 [1986]); Firearm - any pistol or revolver (Penal Law [3]); Operable - capable of discharging ammunition (People v Longshore, 86 NY2d 851, 852 [1995]). Assault Weapon a semiautomatic rifle or a semiautomatic pistol that has an ability to accept a detachable magazine, a semiautomatic shotgun, a revolving cylinder shotgun and any large capacity ammunition feeding device (Penal Law [22]). 2

3 Large Capacity Ammunition Feeding Device (Penal Law [23]): A magazine, belt, drum, feed strip, or similar device, that: has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; OR contains more than seven rounds of ammunition. Deadly Weapon (Penal Law [12]): any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged; OR a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. Dangerous Instrument - any instrument, article or substance, including a "vehicle" as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury (Penal Law [13]). Serious Offense - illegally using, carrying or possessing a pistol or other dangerous weapon; making or possessing burglar's instruments; buying or receiving stolen property; aiding escape from prison; unlawful entry of a building; any violation of law referring to depressant and stimulant drugs; endangering the welfare of a child; jostling; fraudulent accosting; permitting and promoting prostitution; stalking; a criminal sexual act or rape (Penal Law [17]). 3

4 CPW-Fourth Degree (Penal Law [1]) The Basic Offense: Criminal Possession of a Weapon in the Fourth Degree 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, chuka stick, sand bag, sand club, wrist-brace type slingshot or slungshot, shirken or Kung Fu star. Chuka S9ck Cane Sword CPW-Fourth Degree Elements Shirken Blackjack 1. Defendant possessed 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, sand club, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star ; 3. The firearm was operable. 4

5 CPW-Fourth Degree (Penal Law [2]) a weapon in the fourth degree when: (2) He or she possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another. S9le;o Dirk CPW-Fourth Degree Elements 1. Defendant possessed any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon; 3. Defendant did so with intent to use said weapon unlawfully against another. CPW-Fourth Degree (Penal Law [4]) a weapon in the fourth degree when: (4) He possesses a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense. 5

6 CPW-Fourth Degree Elements 1. Defendant possessed a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm; 3. Defendant has been convicted of a felony or a serious offense. CPW-Fourth Degree (Penal Law [5]) a weapon in the fourth degree when: (5) He possesses any dangerous or deadly weapon and is not a citizen of the United States. CPW-Fourth Degree Elements 1. Defendant possessed any dangerous or deadly weapon; 3. Defendant not a citizen of the United States. CPW-Fourth Degree The elevator for Criminal Possession of a Weapon in the Fourth Degree (1), (2), (4) and (5) is: previous conviction. 6

7 Differences CPW-4th (1), (2), (4), (5) (1) Firearm or other blades and concealable weapons; (2) Blades and non-firearm weapons with intent to use unlawfully against other persons; (4) Firearms + felony/serious offense conviction; (5) Dangerous/deadly weapon + non-citizen. Criminal Possession of a Firearm Crim Poss of a Firearm (Penal Law b) a firearm when he or she: (1) possesses any firearm; OR (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of 2013 which added this section subject to the registration requirements of subdivision 16-a of section of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Crim Poss of a Firearm Elements 1. Defendant possesses a) any firearm ; OR b) a firearm prior to 2013 registration requirements (Penal Law [16] [a]) and knowingly fails to register such firearm; 3. The firearm was operable. 7

8 CPW-Third Degree (Penal Law [1]) Criminal Possession of a Weapon in the Third Degree a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision 1, 2, 3 or 5 of section , and has been previously convicted of any crime. The elevator is: previous convictions. CPW-Third Degree Elements 1. Defendant commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision 1, 2, 3 or 5 of section ; 2. Defendant has been previously convicted of any crime. CPW-Third Degree (Penal Law [7]) a weapon in the third degree when: (7) Such person possesses an assault weapon. The elevator is: type of weapon. 8

9 CPW-Third Degree Elements 1. Defendant possessed an assault weapon; 3. The assault weapon was operable. Criminal Possession of a Weapon in the Second Degree CPW-Second Degree (Penal Law [1] [b]) a weapon in the second degree when: (1) With intent to use the same unlawfully against another, such person: (b) possesses a loaded firearm. The elevator is: CPW-Second Degree the weapon being loaded; the intent to use it unlawfully against another person. 9

10 CPW-Second Degree Elements 1. Defendant possessed a firearm; 2. Defendant did so knowingly; 3. The firearm was loaded and operable; AND 4. Defendant possessed the loaded firearm with the intent to use it unlawfully against another. CPW-Second Degree (Penal Law [2]) a weapon in the second degree when: (2) such person possesses five or more firearms. The elevator is: amount of weapons. CPW-Second Degree Elements 1. Defendant possessed five or more firearms; 3. That five or more of such firearms were operable. CPW-Second Degree (Penal Law [3]) a weapon in the second degree when: (3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision 1 or 7 of section of this article, constitute a violation of this subdivision if such possession takes place in such person s home or place of business. The elevator is: location of possession. 10

11 CPW-Second Degree Elements 1. Defendant possessed a firearm; 2. Defendant did so knowingly; 3. The firearm was loaded and operable; AND 4. The possession did not take place in the person s home or place of business. Criminal Possession of a Weapon in the First Degree CPW-First Degree (Penal Law [1]) a weapon in the first degree when such person: (1) possesses any explosive substance with intent to use the same unlawfully against the person or property of another. The elevator is: possession of an explosive substance. CPW-First Degree Elements 1. Defendant possessed an explosive substance; 3. Defendant did so with the intent to use it unlawfully against the person or property of another. 11

12 CPW-First Degree (Penal Law [2]) a weapon in the first degree when such person: (2) possesses ten or more firearms. The elevator is: amount of weapons. CPW-First Degree Elements 1. Defendant possessed ten or more firearms; 3. That ten or more of such firearms were operable. 12