13 Apr '17

Just Because You Can Buy It Doesn’t Mean It Is Legal!

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Posted by KurtWeb
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To be more precise, just because you can buy it in a store doesn’t mean it is legal.  Of course  you can buy things which we all know are illegal to purchase….illicit drugs and sex for instance.  This blog is about the mistake of thinking because something was bought from a legitimate business, it is legal to possess.  Specifically, certain weapons or objects which can be used as weapons.  OK…with a little imagination, almost anything can be a weapon.  But I’m talking about the list of objects named in the NY Penal Law.  

Criminal Possession of a Weapon in the 4th Degree (CPW 4) is a Class A misdemeanor, meaning it carries a maximum penalty of up to 1 year in county jail.  It has 8 subdivisions. The first two are the most relevant for my purpose (here is the statute http://codes.findlaw.com/ny/penal-law/pen-sect-265-01.html ).

Sub. 1 contains a list of weapons you can’t possess for any reason.  You don’t need to have intent to use them unlawfully.  You just can’t have them, period.   Not for use as weapons, paperweights, letter openers, or even for martial arts practice.  Sub. 2 contains a list of weapons you can possess, but not if you have intent to use them “unlawfully” against another.

Remember the Great Ninja Scare of 1973?  Neither do I.  But the NY State Legislature was apparently terrified.  In 1974, they inserted “chuka stick” and “shirken or Kung Fu star” into CPW 4.  In  their fear induced stupor, they made the linguistic error of using the singular “stick” to describe nunchucks ….two sticks tied together with a rope or chain and originally designed as a farm implement for beating the stalks off rice.  One stick would be, well, just a stick.

Here is a photo of me before I lost my hair with nunchucks.  Alright…it really isn’t me on the outside.  This is my inner me when I’m getting ready for trial.

In Case 1, my client (we will call him Bruce) owned a novelty and clothing store just outside Saratoga Springs.  He was raided by a small horde from the NY State Police.  The Troopers seized about a dozen pair of nunchucks.  Sort of.  The nunchucks were hollow plastic tubes wrapped in thick foam rubber.  They were designed for martial arts students to use in practice.  Think wiggly, soft rubber knife.  You can’t cut or really stab anything with one, but it simulates the real thing for practice in the dojo.

Despite the fact the hollow, foam covered nunchucks were specifically designed not to hurt when you hit yourself (and you will before you get good) or a fellow student, the Troopers thought the store owner selling them was enough of a threat to public safety to descend en masse upon his store and haul him off in handcuffs.   He was charged with Sub. 1 of CPW 4.

I filed a motion to dismiss, arguing the objects were not really nunchucks any more than a soft, rubber knife was truly a knife.  Neither would do what their hard or sharp counterparts could.  Both were made for ensuring the safety of martial arts students.  My motion was supported by an Affidavit from a local sensei (martial arts teacher) which explained how these practice tools were in no way weapons.

The Town Court Judge, a non-lawyer and former Trooper, was having none of it.  He wrapped the short chain of a set of practice chucks around a wooden part of his desk and ripped hard.  Wood splintered and flew in the air.  He pounded on his desk with a chucka as hard as he could.  He managed to leave a little mark.  Exclaiming, “You mean to tell me this isn’t a weapon?!”, he glared at me like I had just suggested his mother was a hooker.

“Anything can be a weapon, Judge.”, I replied.  “I could put the blunt end of my pen against the palm of my hand and shove it thru an eye and into the brain.  It would be fatal, and the pen would be the weapon, but it isn’t what it is designed for.  Similarly, these hollow, soft sticks are not designed as weapons.”

Fortunately, the Asst. District Attorney got it.  She understood not only my point, but the mindset of this Judge who may have been missing his days on the force too much.  She offered an Adjournment in Contemplation of Dismissal (ACOD….in 6 months the charge is dismissed, the file sealed, fingerprints and mug shots destroyed, and the arrest doesn’t count).   After witnessing the Judge assault his desk, albeit ineffectually, my client just wanted out of there.  He took the ACOD and did not restock his store.

There is no provision in NY law I am aware of which allows the possession of real nunchucks in NYS, even by martial arts instructor or students.

http://www.fightingarts.com/reading/article.php?id=456

In Case 2,  a young man….Willie… purchased a keychain at a tourist trap in Lake George.  On the chain was a scabbard. In it was a one inch blade which popped out with the touch of a button.  The blade wasn’t much good for anything other than picking your feet (which I hear might be trouble in Poughkeepsie… https://www.youtube.com/watch?v=ZvvlFocf6LU ).  The problem was the button release.  It was the world’s lamest switchblade, but it was a switchblade nonetheless.
When Willie was stopped for a minor traffic violation, the keychain caught the officer’s attention.  Pressing the button, the officer was surprised when the blade popped out.  Willie explained he had purchased the item at a store and so assumed it was legal.  In the cop’s eyes, it was not.  I got a ACOD for Willie, but the fright and expense of being arrested and prosecuted would have been avoided if he hadn’t imputed legality to the item just because the store was selling it.

NY allows for a “mistake of law” defense in regard to certain offenses.  Since CPW 4, sub. 1 does not involve “intent” or any other culpable mental state, but makes merely possessing the listed weapons a crime, this defense won’t be of any real use.  A person’s ignorance of the law might be of limited utility in asking the DA for mercy, but not for much else.  http://codes.findlaw.com/ny/penal-law/pen-sect-15-20.html

I was not counsel in Case 3 but provides insight on how one can get from the misdemeanor CPW 4 to CPW 3.  This more serious offense is a Class D felony punishable by up to 2 1/3 to 7years in prison.  If you violate the rules in sub. 1, 2, 3, or 5 of CPW 4 and have a previous conviction for any crime, you are now in felony land with CPW 3. http://codes.findlaw.com/ny/penal-law/pen-sect-265-02.html

The defendant was pulled over for a traffic violation and discovered to have a suspended driver’s license.  In the course of searching the car incident to the arrest, the police discovered a electronic stun gun in the glove compartment.  The stun gun was legal in the driver’s home state, but he crossed into NY where it is not.  Because  he had an old conviction for a crime on his record (which apparently did not prevent him from buying the stun device in his home state), he was charged with the felony of CPW 3. Even though this fellow’s home state probably sees stun guns as a viable means of employing non-lethal force in self-defense, NY isn’t there yet.

NY State was the last state in the country to allow citizens to carry pepper spray.   That should give you an idea of the attitude here about citizens using any tools for self-defense.  The “mistake of law” defense won’t help with CPW 4 or CPW 3.  But take comfort in knowing that the next time you are attacked by ninja assassins armed with shirken, the NY Legislature has you covered.  And never presume that just because a store is selling an item it is legal.

 

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