Tag: New York Penal Law

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In People v. Joseph, the Court of Appeals holds that Defendant’s Burglary Conviction cannot Stand because the Residential Area of the Building could not be accessed from where he entered.

The Defendant was charged “with one count each of burglary in the second degree (Penal Law § 140.25 [2]), burglary in the third degree (Penal Law § 140.20), resisting arrest (Penal Law § 205.30) and attempted escape in the second degree (Penal Law §§ 110; 205.10 [2]).” Here, the Court of Appeals grapples with whether the Defendant actually committed a burglary as defined by the Penal Law.

The facts are recited by the Court as follows:

On the evening of June 28, 2010, defendant entered the basement of the Greenleaf Deli in Manhattan. The deli was located on the ground floor of a seven-story building, with six floors of residential apartments above it. The basement, which was only accessible through two cellar doors located on the public sidewalk adjacent to the deli, was used to store deli merchandise. There was no access from the basement to any part of the residential units of the building, or to the deli itself. The apartment residents did not have access to the basement and only deli employees were permitted to enter the basement. An employee observed defendant on the deli’s surveillance monitor enter the open doors to the deli basement and walk around the basement with a flashlight. The employee went outside, closed and locked the basement doors and called 911. The police arrived, asked defendant to climb out of the basement, and, after a struggle, arrested him.

The argument put forward, before and during trial, by his defense attorney was that the deli basement was not a dwelling as the law defined it. Indeed, longstanding law holds that “if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.” People v McCray (23 NY3d 621, 625 [2014]).   more

A slew of news articles and challenges to what is a legal knife and what is an illegal knife, a Gravity Knife, have surfaced throughout New York and, more specifically, New York City. The sale of Gravity Knives and folding Knives in New York City have caused an uproar, including a recent challenge (2d Cir.) to the New York City District Attorney’s Office of criminally charging certain knife possessions. The most basic criminal procedure class teaches its students that a crime has two elements, mens rea and actus reus. One must know it is a crime before one can commit a crime. Here, the New York Court of Appeals determined that knowledge of what a gravity knife is can no longer be considered an element of that crime:

It is not disputed that defendant Elliot Parrilla possessed a folding utility knife at the time of his arrest. He asserts, however, that he was unaware that the knife’s characteristics rendered it a gravity knife and that the People were required to prove such knowledge to establish an element of the crime of which he was convicted — criminal possession of a weapon in the third degree. We reject defendant’s argument and hold, based upon the statutory language, that the mens rea prescribed by the Legislature for criminal possession of a gravity knife simply requires a defendant’s knowing possession of a knife, not knowledge that the knife meets the statutory definition of a gravity knife.

Penal Law §265.01 (1) states that a “person is guilty of criminal possession of a weapon in the fourth degree when:…[h]e or she possesses any…gravity knife.” Section 265.00 (5) defines “‘[g]ravity knife'” 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 in place by means of a button, spring, lever or other device.” The crime is defined as a class A misdemeanor. The law was created, in part, to address individuals walking the streets of New York carrying foot long knives that could easily be concealed. “The Penal Law identifies gravity knives as per se weapons and criminalizes the mere possession of one” (People v. Brannon, 16 NY3d 596, 599 [2011]). In other words, section 265.01 (1) “criminalizes the mere possession, and not use, of a gravity knife” (id. at 602). Over the years, the development of knives and knife weapons has changed.

The Court concludes, however, that

Penal Law §265.01 (1) does not require the People to prove that defendants knew that the knife in their possession met the statutory definition of a gravity knife. The plain language of that subdivision demonstrates that the Legislature intended to impose strict liability to the extent that defendants need only be aware of their physical possession of the knife (see Penal Law §§15.00 [2]; 15.10). While knowing possession of the knife is required (see Penal Law §15.15 [2]), we conclude it is not necessary that defendants know that the knife meets the technical definition of a gravity knife under Penal Law §265.00 (5).

Buyer beware: the possession of a gravity knife is a crime in New York, a misdemeanor. There may be a constitutional violation if such knife was not , however, a Gravity Knife and yet one were to be incarcerated and/or criminally charged with possession of a gravity knife. Should you need assistance with such matters, call the Law Offices of Cory H. Morris.

The case is People v. Parrilla, No. 99, NYLJ 1202756639632, at *1 (Ct. of App., Decided May 3, 2016), http://www.newyorklawjournal.com/id=1202756639632/People-v-Elliot-Parrilla-No-99#ixzz4BSGEjWn9

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Defendant is charged with one count of criminal possession of a weapon in the fourth degree (Penal Law ‘265.01 [2]). A person is guilty of criminal possession of a weapon in the fourth degree when he “possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” (Penal Law ‘ 265.01 [2]).

The Court frames the issue: “[t]he questions presented here are whether the allegations — that an officer found a knife on the floor of defendant’s car and that defendant made a statement indicating that he possessed the knife for self-protection — establish reasonable cause to believe (1) that defendant knowingly possessed a “dangerous knife” and (2) that he possessed the knife with the intent to use it unlawfully against another. Defendant contends that the allegations are insufficient to establish reasonable cause to believe that he had the intent to use the knife unlawfully against another.” Pp. 1-2. After reiterating the legal standard for facial insufficient (see Pp. 2), the Court recites the legal standard for Reasonable Cause:

“Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” Pp. 5. See CPL 70.10 [2]). “Reasonable cause to believe that a person has committed an offense” focuses upon the issue of whether the evidence is of sufficient weight and persuasiveness to establish a reasonable likelihood a defendant committed the offense. Peter Preiser, Practice Commentary, McKinney’s Consolidated Laws of New York Annotated, CPL 70.10)…. The measure of “reasonable cause” is the equivalent of the familiar constitutional standard called “probable cause” (People v. Johnson, 66 NY2d 398, 402, n. 2 [1985]).

For either to exist, the evidence must be strong enough to support a reasonable belief that it is more probable than not that a defendant committed a crime (see People v. Mercado, 68 NY2d 874, 877 [1986]). When “evidence or information which appears reliable discloses facts or circumstances” (CPL 70.10 [b]) which favor equally guilt or innocence the reasonable cause standard is not met (People v. Carrasquillo, 54 NY2d 248, 254 [1981] [“conduct equally compatible with guilt or innocence will not suffice”]).

Although the Court finds that it is clear (by his statements and the surrounding circumstances of its recovery) that the Defendant possessed a knife, it is unclear whether the Defendant possessed the intent to actually use that knife. The defendant indicated that it was dangerous out there and that he needed the knife for self-protection. By establishing possession of a “dangerous knife”, the People are entitled to the statutory presumption that defendant intended to use the knife unlawfully against another. (Penal Law §265.15[4]). The presumption establishes reasonable cause but can be overcome by the defendant.  more