Sunday, April 27, 2014

Ithaca Lawyer Are YOU at the Mercy of the New York Police on a Car STOP, Truth or Fiction?

Gotta Love Spidey! My Philosophy Teacher.
from dan-dare.org


Peter Parker (as Spiderman) 

"With Great Power Comes Great Responsibility" 
"This is my gift, my curse"

Many people are skeptical of the honesty of the police. The Primary Question: Are they really going to be honest and truthful in their dealings with me as a citizen? Well to simplify, the police have a dual role or function in our society: to serve and protect /to investigate and charge crime. They have authority, power, and the enormous responsibility to use them properly and appropriately.

Can they be done together? Unlikely? In a perfect world they have to use common sense, and be psychologists, social workers, and enforcers all at the same time. A good law enforcement officer is under a lot of stress to fulfill these roles with the care and attention they deserve.

One Example: The police stop your friend's car for speeding. Everyone in the car is ordered out. The car and it's occupants are searched, a folding knife is found in the car.

What can happen now? What can happen to everybody in the car?

New York States's Weapon Law is Seriously NOT in your Favor


The Best Folding Knives in the World: Buck Knives
But you better know your New York knife law before getting one
from foldingknivesreviews.com


Section 265.01 Criminal Possession of a weapon in the 4th degree


A  person  is  guilty of criminal possession of 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,
  metal  knuckles,  chuka  stick,  sand  bag,  sandclub,  wrist-brace type
  slingshot or slungshot, shirken or "Kung Fu star"; or
    (2) 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; or
    (3); or
    (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; or
    (5)  He  possesses any dangerous or deadly weapon and is not a citizen
  of the United States; or
    (6) He is a person who has been certified not suitable  to  possess  a
  rifle  or  shotgun, as defined in subdivision sixteen of section 265.00,
  and refuses to yield possession of such rifle or shotgun upon the demand
  of a police officer. Whenever a person  is  certified  not  suitable  to
  possess  a  rifle or shotgun, a member of the police department to which
  such certification is made, or of  the  state  police,  shall  forthwith
  seize  any rifle or shotgun possessed by such person. A rifle or shotgun
  seized as herein provided shall not be destroyed, but shall be delivered
  to the headquarters of such police  department,  or  state  police,  and
  there retained until the aforesaid certificate has been rescinded by the
  director  or  physician in charge, or other disposition of such rifle or
  shotgun  has  been  ordered  or  authorized  by  a  court  of  competent
  jurisdiction.
    (7)  He knowingly possesses a bullet containing an explosive substance
  designed to detonate upon impact.
    (8) He possesses any armor piercing ammunition with intent to use  the
  same unlawfully against another.
    Criminal  possession  of  a  weapon  in the fourth degree is a class A
  misdemeanor.

Remember that the Police need to know and understand the laws they have given their oath to protect and enforce.


Who determines if it is a "dangerous" knife?

The police! 

If it looks (appears) to be dangerous, it is! In NYC it also has a 4" limit legally speaking.

If it looks like a duck, walks like a duck, and sounds like a duck, well it's probably a DUCK!

Who determines if you have "the intent" to use it unlawfully against another?

The police!

The INTENT to USE IT UNLAWFULLY AGAINST ANOTHER IS THE KEY HERE! because

Law enforcement officers (LEOs), the police make all these determinations.

But the law is again on their side in making such a crucial determination. Once a car is stopped, all they need is Probable cause for a legal stop (any traffic violation or equipment violation) then it (the car) and the passengers in it (and their bags) can also be searched LEGALLY in New York State!

POSSESSION IN NEW YORK IS both PRESUMPTIVE POSSESSION AND INTENT 


§ 265.15 Presumptions of possession, unlawful intent and defacement.

    1.  The  presence  in  any room, dwelling, structure or vehicle of any
  machine-gun is presumptive evidence of its unlawful  possession  by  all
  persons occupying the place where such machine-gun is found.
    2.  The  presence  in  any  stolen  vehicle of any weapon, instrument,
  appliance or substance specified in  sections  265.01,  265.02,  265.03,
  265.04  and  265.05  is  presumptive  evidence  of its possession by all
  persons occupying such vehicle at  the  time  such  weapon,  instrument,
  appliance or substance is found.
    3.  The presence in an automobile, other than a stolen one or a public
  omnibus, of any  firearm,  large  capacity  ammunition  feeding  device,
  defaced  firearm,  defaced  rifle  or  shotgun,  defaced  large capacity
  ammunition feeding device, firearm  silencer,  explosive  or  incendiary
  bomb,  bombshell,  gravity  knife,  switchblade  knife,  pilum ballistic
  knife, metal knuckle knife, dagger, dirk,  stiletto,  billy,  blackjack,
  plastic  knuckles,  metal  knuckles,  chuka  stick, sandbag, sandclub or
  slungshot is presumptive evidence  of  its  possession  by  ALL  persons
  occupying  such  automobile  at  the  time  such  weapon,  instrument or
  appliance is found, except under the  following  circumstances:  (a)  if
  such  weapon, instrument or appliance is found upon the person of one of
  the occupants therein; (b) if such weapon, instrument  or  appliance  is
  found  in  an  automobile  which  is  being  operated for hire by a duly
  licensed driver in the due, lawful and proper  pursuit  of  his  or  her
  trade,  then  such  presumption shall not apply to the driver; or (c) if
  the weapon so found is a pistol or revolver and one  of  the  occupants,
  not  present  under duress, has in his or her possession a valid license
  to have and carry concealed the same.
    4. The possession by any person  of  the  substance  as  specified  in
  section 265.04 is presumptive evidence of possessing such substance with
  intent  to  use  the  same  unlawfully against the person or property of
  another if such person  is  not  licensed  or  otherwise  authorized  to
  possess  such  substance.  The  possession  by any person of any dagger,
  dirk,  stiletto,  dangerous  knife  or  any  other  weapon,  instrument,
  appliance  or substance designed, made or adapted for use primarily as a
  weapon, is presumptive evidence of intent to  use  the  same  
  unlawfully against another.
    5.  The  possession  by  any person of a defaced machine-gun, firearm,
  rifle or shotgun is presumptive evidence that such  person  defaced  the
  same.
    6.  The  possession  of  five  or  more  firearms  by  any  person  is
  presumptive evidence that such person possessed the  firearms  with  the
  intent to sell same.


If they find weapons or drugs, one and all can be charged with crimes.


It is up to the police (very subjective) whether to charge one or all of the people in the car with the crime (misdemeanor) criminal possession of a weapon in the 4th degree.

KEY TAKEAWAY: What all this really means is that you better know the people you are traveling with AND you better know about what's in their car, or else it's your ass on the line if they get stopped.


Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

newman.lawrence@gmail.com
607-229-5184

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