NY State poised to enact bill classifying machetes as deadly weapons.

[Eyegor]

So in regards to machetes, the DA would have to prove intent to use unlawfully against another under NYPL 265(01)(2) to convict on CPW4, a class A misdemeanor. At least as far as I understand it.

 

[RX-79G]

Thought I explained this above, but lets try again....The effect of calling it a deadly weapon has to do with advanced knowledge that use of it as a weapon falls under the guidelines of use of deadly force and under section 35 of the NYPL there are different levels of allowable use of force. If an item is labelled as a deadly weapon, then you can only lawfully use it when DEADLY force is allowed under section 35. This takes the burden of proof of your intent to use deadly force off the DA as the law now implies use of it as a weapon is now defacto that deadly force was used, Now all the DA has to prove is deadly force was not warranted under section 35....That's all folks....It simply makes use of it as a weapon is known deadly force and it elimates the issue as to what level of force was used ...Take a look at the section 35 as reading it will help:

http://ypdcrime.com/penal.law/article35.htm

Does this mean that if you use a machete in any way against another person, the intent must be to kill them? Unlike using a club, which may more easily be used non-lethally and interpreted to be non-lethal in intent?

 

[zzyzzogeton]

Maybe, and that's a big maybe, if you still had the scabbard on the machete, it MIGHT be viewed more as a club than an edge weapon. It would still depend on the attitude of the LEOs, DAs and Judge and the circumstances/event outcome.

 

[tom19176]

If you use it as a weapon you are using deadly force. That is all this does. The law makes it proof that deadly force was used when you use it as a weapon. I really can't explain it any clearer than that. If you shoot at someone with a firearm, then you used deadly force against that person. It doesn't matter if you missed or shot the person in the toe you can be charged with attempted murder as you used deadly force since a firearm is a defined deadly weapon. It is all about the law now defining this type of knife is a deadly weapon by defined law, and any use of it as a weapon, will be considered deadly force being used. That's it for me explaining this one.....

 

[HeavyHanded]

This still doesn't make sense to me at all. Used as a weapon it would already qualify as a dangerous instrument, and therefore be capable of causing "death or other serious physical injury".

Whether it classes as a dangerous instrument or deadly weapon, the assault charge would have been the same(?) based on intent. You might only be charged with assault 2 or 3 while using it offensively, and not automatically attempted murder. Though you could still be charged with attempted murder based on intent, it is not automatic.

I'd love to see one email, letter or public statement by LE or DA's office anywhere in the state declaring a need for this legislation in order to do their job.

 

[HeavyHanded]

IMHO, this is still going to be a wait and see.

Legally this seems like a change to possession offenses and not usage offenses. In that currently the charge wouldn't be "possession of a deadly weapon" and after this goes through it will be.

Right now if you have an axe or length of black pipe in your car it isn't automatically considered possession of a weapon without demonstrable intent to use as such, whereas if you use an axe, pipe, wrench etc etc with intent to cause severe harm or death it is no different from any of the "deadly weapons" when it comes to charges.

All of the items on the "deadly weapon" list have qualifiers to make possession legal (if at all), dangerous instruments need to have intent to use as a weapon proven/inferred for possession to be unlawful...

 

[tom19176]

I can't say it any clearer. All this does is make it clear that ANY USE of it as a weapon is by law use of deadly force not with standing the result of it use. All the other offenses require the state to prove intent and or other standards, this makes use of it for as a weapon use of deadly force. Then the DA has to decide if deadly force was lawfully applied. That is all there is too it.....

 

[RX-79G]

I can't say it any clearer. All this does is make it clear that ANY USE of it as a weapon is by law use of deadly force not with standing the result of it use. All the other offenses require the state to prove intent and or other standards, this makes use of it for as a weapon use of deadly force. Then the DA has to decide if deadly force was lawfully applied. That is all there is too it.....

That helps, thanks.

 

[HeavyHanded]

I don't think I'm sharp enough to understand this:

All this does is make it clear that ANY USE of it as a weapon is by law use of deadly force not with standing the result of it use.

relative to the penal code. Every entry regarding assault 1-3, attempted murder etc uses the phrase:

...by means of a deadly weapon or a dangerous instrument...

To any reasonable interpretation, a machete would have qualified already, in every way that matters, in the same way an axe, shovel, crowbar, etc would. "Dangerous Instruments" are by definition already capable of delivering deadly physical force if the intent is there.

The only distinction between "deadly weapons" and "dangerous instruments" is that dangerous instruments aren't inherently a weapon, whereas everything on the deadly weapon list is considered inherently a weapon - outside of qualifying factors - ie a hunting/fishing license to a switchblade, meeting legal requirements to possess a firearm etc. The only way this makes any difference is regarding possession, and not use. Not even the unlawful use of a firearm against another triggers an automatic "attempted murder" charge, intent is always a factor.

My from the hip guess is that an officer can now use the presence of a machete to investigate intent, in the absence of any other factor. The sight of it alone likely sufficient to search a vehicle for example.

It becomes its own RAS for further lines of investigation to rule out unlawful intent. It is presumed unlawful in the absence of qualifying factors - in the same way the presence/possession of a switchblade leads to a lawful request to see a hunting/fishing license and to verify the individual is engaged in same, the presence/possession of a handgun sufficient to request a valid pistol permit...

Then again, I readily admit I am not the sharpest legal mind in these parts....

 

[HeavyHanded]

Due to my lack of ease on this issue I have sent another letter to my Senator's office in the hopes of getting an answer that sounds more definitive.

Hello Frank,
First off I would like to thank you heartily for responding to my inquiry. Sen Robach's office is the only one to have responded among the half dozen Emails I have sent about this legislation.

Without appearing too thick about this, I am trying to reconcile the wording of the Bill with existing legislation. While perhaps not the intent, it appears very much that it is indeed a complete ban on possession for any reason per S265.15

'Presumptions of possession, unlawful intent and defacement.'

(4) 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.

This 'presumptive evidence' supplies the "intent" to make a charge stick for Criminal Possession 4th degree, regardless of the author's intent. They need to add an 'Exemption' for lawful use.
The header for the Bill couldn't be any more clear that it makes simple possession a criminal offense:
Includes the possession of a machete within the class A misdemeanor of criminal possession of a weapon in the fourth degree

Of the other items on the list of 'Deadly Weapons', none are permitted to be carried or used without some form of qualification per 265.20 'Exemptions' - ie a valid hunting/fishing license per a switchblade, meeting legal requirements to possess a rifle/handgun.

Most of the items have no such qualification. They are simply prohibited and mere possession implies intent to use unlawfully. This sets them apart from items in the 'Dangerous Instrument' category that are only unlawful based on use and intent such as an axe or crowbar, and prior to this Bill's passage, the machete.

Thanks again for your help in this matter. And not to be a pest, if there is another office to which this inquiry would be better directed, please be kind enough to advise me of such.

Sincerely,


Martin Miller
Washboard Sharpening

 

[HeavyHanded]

Well, this is about the best I'm going to get from my fearless State representatives. Have to admit Joe Robach's office did a good job getting back to me considering they probably rec'd very few inquiries about this compared to other issues.

I still believe in typical NY style this one won't be understood clearly until it hits the appellate court. Use of a machete intentionally against another person was already a criminal offense (a buddy of mine actually testified at trial of attempted murder in a machete assault years ago, to an attack he witnessed - defendant was convicted), so this has to be a change in possession violation. The only question is if it satisfies the

made or adapted for use primarily as a weapon from s265.15

Making possession = intent.

Any reasonable interpretation would come to this conclusion or the law would have zero effect in terms of probable cause to make an arrest or in terms of charge or sentencing. In the meantime I'm going to carry on like nothing has changed relative to lawful usage as this could be interpreted several ways, and keep a printable copy of all my correspondence available.

Thank you NYCabalbany for another idiotic law with which to plague Upstate.

 

[tom19176]

No it does NOT have to be a change in possession......If you friend witnessed a guy hitting the other guy with a hammer the same result would have been found.....

 

[CapitalizedLiving]

Thanks Tom. I get what you're saying and appreciate the clearheaded analysis.

 

[HeavyHanded]

No it does NOT have to be a change in possession......If you friend witnessed a guy hitting the other guy with a hammer the same result would have been found.....

That's my point/question/lack of clarity re this legislation. If it doesn't change possession status (which clearly states its intent in the Bill's header) then it doesn't change anything. A deadly weapon or dangerous instrument used unlawfully will generate the same charges based on intent and outcome, not whether said instrument/weapon is on a separate list or not.

A dangerous instrument that one admits carrying to use unlawfully on another is already 4th degree weapons possession, and the law changes nothing in that regard. The machete didn't need to be added to a special list to qualify in that respect. Putting it on a special list does change its presumed use from that of a tool to that of a weapon.

I keep coming back to the "presumed intent" clause and how it pertains to "weapons". s265.15 is pretty definitive.

I deeply, sincerely hope I'm wrong (am not just continuing on for the sake of argument here), but I just don't see how this law changes anything if not for 'presumed intent' and its impact on possession in the absence of any other factor.

 

[HeavyHanded]

My final thoughts on this. While I am certain it will be abused in the same manner as NY's gravity knife provision, here is what the author, Tony Avella, had to say about this Bill last year (when it was scrubbed for lack of support). The text has not changed.

"Thank you for contacting my office regarding my recent bill that will amend the New York State Penal Law to include a machete within the definition of “Deadly Weapon”. Unfortunately, there has been some confusion in the media that has improperly characterized this bill as a “ban” on machetes. In fact, the bill only includes machetes in the Penal Law definition of a “Deadly Weapon” pursuant to subdivision 12 of Section 10.00. The effect of this definitional change is to mandate that when a person causes physical injury by using a machete and did so either intentionally, recklessly or with criminal negligence they can be charged accordingly pursuant to the Penal Law provisions covering Assault Offenses (Article 120).

The above statement makes no sense, assault charges do not differentiate at all between a 'deadly weapon' or a 'dangerous instrument'.

I purposely did not include machete in the other “Dangerous Weapons” offense categories within the Penal Law including “criminal possession of weapons” or “manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances”. The specific reason for this is because machetes, as opposed to other “Deadly Weapons” do have a functional use for many people throughout the state including farming, hunting, landscaping, etc. Therefore, I chose to solely amend Section 10.00 of the Penal Law so that only those persons who use machetes with the intent to harm or harm someone recklessly or with criminal negligence can be charged accordingly.

In his view, deliberately omitting it from s265.15 eliminates "presumed intent" because a machete is not primarily made or intended as a weapon. State must prove intent in some manner to charge an individual, possession alone is not enough.

From further reading into this, it seems the primary envisioned application of this is relative to repeat offenders who are found in possession of a machete. Again, this makes no sense as a 'dangerous or deadly instrument' is already unlawful to possess if one intends to use it unlawfully and the State is capable of proving so. The Bill also does not change the wording of s265.01(?), so by the author's stated reasoning relative to s265.15, it wouldn't have an effect on 4th degree weapons possession any way - which seems a real disconnect between the intent as expressed in the Bill's header

Includes the possession of a machete within the class A misdemeanor of criminal possession of a weapon in the fourth degree

and the intent as expressed informally by the author in this response.

According to the justification for the Bill, currently possession by a repeat offender qualifies as an administrative offense and not a violation of the penal code. Supposedly offenders can carry a machete without risking a felony. Following passage, they will now be booked for 3rd degree weapons possession (?). This also makes no sense as it implies unlawful possession, but with a previous conviction supplying the 'presumed intent'. My only guess (and my original one) it is intended from the get-go to be used selectively with potential to be used capriciously.

The above quote would come in handy in the event of an unfounded arrest.

The quote in context:
http://www.nysapls.org/news/217762/Proposed-legislation-to-ban-machetes-in-NYS.htm