How to Beat a PL 265.01 Charge
Although the government aggressively prosecutes weapons offenses, you may be able to beat a PL 265.01 charge.
This guide discusses the basics of the PL 265.01 charge and explores how you may be able to beat your charge. If you have been charged with PL 265.01, contact NYC weapon charge lawyer Cody Warner for a free consultation. He can assess your case to determine the best path forward.
What are the elements of a PL 265.01 charge?
Penal Law (PL) 265.01, known as Criminal Possession of a Weapon in the Fourth Degree, is New York’s most common misdemeanor weapon charge. As class A misdemeanor, PL 265.01 carries a maximum sentence of one year in jail.
PL 265.01 has many subdivisions that prohibit various forms of weapons possession. That said, by far, the most commonly charged subdivisions of PL 265.01 are (1) and (2). Chances are, if you are facing a PL 265.01 charge, you are charged with PL 265.01(1) or PL 265.01(2).
A person commits PL 265.01(1) when he possesses any firearm, electronic dart gun, electronic stun gun, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken, or “Kung Fu star.”
A person commits PL 265.01(2) when he possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, undetectable knife or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.
Key Differences between PL 265.01(1) and PL 265.01(2)
The primary difference between subdivision (1) and subdivision (2) of Criminal Possession of a Weapon in the Fourth Degree is that subdivision (1) prohibits the outright possession of certain items, whereas subdivision (2) prohibits certain items only if you possess it with the intent to use it unlawfully. In other words, if you possess any item in subdivision (1), you have committed PL 265.01(1) regardless of your intent, whereas you commit PL 265.01(2) only if you possess an items listed in subdivision (2) AND you possess it with the intent to use it unlawfully.
That said, PL 265.15 lists certain presumptions that apply for 265.01 charges. One of those presumptions is that, if you possess a dangerous knife made or adapted for use primarily as a weapon, possession of such item is presumptive evidence that you possessed the item with the intent to use it unlawfully. However, an experienced weapon charge lawyer may be able to find a way to rebut the presumption.
Common Defenses to a PL 265.01 charge
Many possible defenses exist for PL 265.01 Criminal Possession of a Weapon in the Fourth Degree charges. However, the most common ones are the defenses of unlawful search, no possession, and not actually a weapon.
Many PL 265.01 cases involve the police finding the weapon after conducting a search. After all, most people don’t waive around weapons in front of the police—the police find the weapon only after doing a search.
The question, then, becomes whether the police had the right to perform the search in the first place. The 4th Amendment to the U.S. Constitution gives us the right to be free from unreasonable searches and seizures. When the police search an area without proper legal justification, then the items they find can be suppressed from evidence. In other words, if the police violated your rights when they searched you and recovered a weapon, you may be able to get the judge to toss out the weapon as evidence in the case. If that happens, then the prosecution likely won’t be able to move forward with their case.
To be sure, the law surrounding searches is complicated, and many exceptions apply. An experienced criminal lawyer can assess your situation to determine whether the police did not have legal justification to conduct a search.
Another common defense is that you did not actually possess the weapon. Imagine this: you are riding in the back seat of someone else’s car. The police pull over the car, order everyone out, search the car, and then find a weapon. Under PL 265.15, the police are allowed to presume that everyone in the car possessed the weapon, and therefore they can legally arrest everyone.
However, the prosecution must prove its case beyond a reasonable doubt. If the car was not yours, your fingerprints aren’t on the weapon, and no other evidence connects you to the weapon, you would have a great defense that you didn’t actually possess the weapon.
Not an Illegal Weapon
Sometimes items don’t fit neatly into categories or are hard to define. For instance, it’s illegal to possess of “bludgeon,” but what exactly is a bludgeon? The police often have overly broad interpretations of weapon and therefore arrest people for possessing items that aren’t actually weapons.
For some kinds of weapons, courts have written decisions that provide clarity about the definition of such weapons. However, some weapons are not well defined. If you are charged for possessing a weapon, an experienced lawyer may be able to present strong arguments that what you possessed was not actually an illegal weapon.
What to Expect if You are Facing PL 265.01 Charges
Many people facing PL 265.01 charges were arrested and given a desk appearance ticket. However, if the police determine that an alleged victim wanted an order of protection, they may arrest the suspect and bring the suspect directly to court.
Regardless of whether the police issue a desk appearance ticket, the government usually aggressively prosecutes PL 265.01 charges. The prosecution rarely agrees to dismiss weapons charges.
A skilled criminal lawyer may be able to convince the prosecution to reduce the charges down to a non-criminal offense, like disorderly conduct.
Ultimately, you are presumed innocent until proven guilty, and you may have a strong defense. If you are facing a PL 265.01 charge and have a strong defense, then taking the case to trial might be the right strategy for you.
If you are interested in trying to beat a PL 265.01 charge, contact NYC criminal lawyer Cody Warner for a free consultation. He can assess your case to determine the best path forward.