[DVDA]

Originally Posted by Kroy

That nailed bat sounds illegal as hell to have. Can't imagine it being fun trying to explain that one to the cops.

§ 33:5. Firearms and other dangerous weapons—Billy, blackjack, bludgeon and other blunt instruments

West's Key Number Digest

West's Key Number Digest, Weapons 8



After firearms and knives, clubs must surely come to mind as the most common kind of weapon with which to inflict death, injury or merely terror. Thus, Article 265 prohibits the possession of such blunt instruments as the billy, the blackjack and the bludgeon. While they may sound like something out of Charles Dickens, the mere possession of these instruments is a crime.[FN1] These terms are not specifically defined in the statute, however, forcing the courts to interpret their meaning, sometimes with conflicting results, and in many cases leaving to the jury the question of the status or type of blunt instrument the defendant possessed.
For example, courts have grappled with the issue of what constitutes a “billy” within the meaning of Article 265. In People v. Schoonmaker,[FN2] the Appellate Division reversed the trial court's order suppressing evidence. The Appellate Division found that the trial court was certainly mistaken in its understanding of what constitutes a “billy,” because the trial court had found that the defendant did not possess a “billy,” and therefore no probable cause existed to arrest him, even though he was found in possession of a wooden shaft measuring 26 inches long and approximately 1 1/2 inch in diameter, with a leather strap attached to the end of the shaft, rendering the item a “nightstick” or “billy.” The Appellate Division rejected the trial court's understanding of a “billy” as somehow a shorter instrument capable of being carried in one's pocket. Similarly, in People v. Talbert,[FN3] the court held that a police officer had probable cause to believe that the defendant was in possession of a “billy” based on the defendant's possession of an object described as a broom handle 24 to 30 inches in length, with tape wrapped around each end. The Appellate Division reached its conclusion timorously, noting that

everyday objects, such as wooden sticks and tool handles, can look, in general terms, like a billy and, in criminal hands, can serve the purpose of a billy. It is clear from the statutory scheme that the Legislature did not intend to make mere possession of such objects per se unlawful. In our view, based on the manner in which the statute is set forth, the term “billy” must be strictly interpreted to mean a heavy wooden stick with a handle grip which, from its appearance, is designed to be used to strike an individual and not for other lawful purposes.[FN4]


Despite its “strict interpretation” of a “billy,” the Appellate Division in Talbert arrived at the conclusion that the object possessed by the defendant in that case was indeed a “billy,” because the addition of a grip to the broom handle converted an otherwise innocuous instrument into a fearsome weapon which met the definition of a “billy,” although the statute itself contains no such definition.
By contrast, in People v. Houghton,[FN5] the court concluded that a mini-baseball bat, measuring 12 inches long and weighing 6 1/2 ounces, and made by the defendant's brother-in-law in a high school industrial arts class, was certainly not a “billy” within the meaning of the statute. The court relied on the “Police Manual,” which described the two essential characteristics of a “billy”: “a thong or palm grip” and “lead weights at the bottom.”[FN6] Because the instrument in Houghton did not have these attributes, it was plainly not a “billy.” Similarly, in People v. Buhagiar,[FN7] the defendant's possession of a pestle, commonly used as a cooking utensil, absent evidence of alteration or an intent to use it unlawfully against another, did not constitute criminal possession of a “billy” within the meaning of the statute. Likewise in People v. Phillips,[FN8] the defendant's possession of a “collapsible baton,” described in the accusatory instrument as a “cylindrical handle with foam covering, and [which] had two internal collapsible sections, each about 6 to 8 inches long, made of steel tubing which could be extended and locked into place with the flick of a wrist,” was not a prohibited “billy” as strictly defined in People v. Talbert.[FN9]
A 'blackjack' is per se illegal,[FN10] and one would expect such a per se weapon to be statutorily defined so that there would be no ambiguity concerning its meaning. While a 'blackjack' is not defined in Article 265, it is one of the few per se weapons which is familiar enough to excuse the omission of a statutory definition. Thus, consistent with the common understanding or image of a 'blackjack', case law has interpreted the term 'blackjack' to mean a club with a flexible handle.[FN11]
A “bludgeon,” another per se weapon,[FN12] also lacks a statutory definition, despite the ambiguity of its meaning. The case law has interpreted a “bludgeon” to mean a short stick with one end loaded or thicker and heavier than the other, used as an offensive weapon.[FN13] According to the courts, because a bludgeon, as everyone knows, is primarily designed to be used as an offensive weapon, unlike, say, a baseball bat, the Legislature has made mere possession of a “bludgeon” a crime, although the Legislature has not seen fit to define the term. Query whether any attorney, no matter how competent, could confidently advise a client what objects he should avoid carrying in order to escape per se culpability for carrying a bludgeon.
Perhaps the point is made best, however, by People v. Branhut.[FN14] In that case, the inventor of the “spring whip” was charged with criminal possession of a weapon after he was arrested at LaGuardia Airport when he was found to be carrying six spring whips in his attache case.[FN15] The accusatory instrument originally charged the defendant with possession of a billy, but the People were forced to concede that the spring whip was not a billy, and they amended the accusatory instrument to charge the defendant with possession of a bludgeon. The court dismissed the charges, finding that a spring whip was not a bludgeon. According to the Branhut court, a bludgeon had a club-like shape, was weighted heavier at one end, was rigid and unyielding in texture, and obviously designed for offensive purposes. Thus, a bludgeon was nothing at all like the spring whip, which was lightweight, flexible and to be used as a defensive weapon. In short, no one but the prosecutor could have mistaken the spring whip for a billy or a bludgeon.
In People v. Ford,[FN16] decided five years after Branhut, the defendant purchased a spring whip from Mr. Branhut in reliance on the decision in Branhut, but was prosecuted anyway for criminal possession of a weapon based on his possession of a spring-whip. The People initially characterized the “spring whip” as a “blackjack” and a “telescoping blackjack,” but later amended the complaint to allege the defendant's possession of a “billy” and “telescoping night stick.” In upholding the sufficiency of the accusatory instrument, the Ford court distinguished Branhut because in Branhut the People had disavowed characterizing the spring whip as a “billy,” while in Ford the People returned to the “billy” theory. The Ford court reviewed the case law concerning what constitutes a bludgeon, billy or blackjack, and concluded, not surprisingly, that these instruments are not uniformly constructed with precise measurements and weights. Instead, in determining the nature of a particular instrument, and whether it is a per se weapon, the courts supposedly look at three critical factors: “(1) Is the weapon club-like? (2) Can it render serious physical injury? (3) Does it have any legitimate purpose other than as a weapon?”[FN17] According to the court in Ford, a spring whip embodied all three factors, permitting the jury to determine whether a spring whip was a per se weapon within the meaning of criminal possession of a weapon in the fourth degree.
In other words, while the prosecutor himself could not easily determine the nature of a spring whip, a jury could surely do so. The result in Ford is particularly disturbing because the per se possession statute, N.Y. Penal Law § 265.01(1), does not contain a catch-all phrase, which would allow a jury to determine whether a spring whip was like the other per se weapons listed in the statute. As defined by the Legislature, if a spring whip does not constitute one of the listed instruments, its possession would not be per se criminal. One thing is clear: a spring whip is neither a billy nor a bludgeon. There is an obvious cautionary tale in Branhut and Ford.
Article 265 criminalizes the mere possession of a chuka stick or nunchakus.[FN18] Fortunately, the statute defines a “chuka stick” as “any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. These devices are also known as nunchakus or centrifugal force sticks.”[FN19] The definition of “chuka stick” was added to Article 265 in 1974; the sponsor of the bill described the chuka stick as an instrument designed primarily as a weapon which, with a minimum amount of practice, “may effectively be used as a garrote, bludgeon, thrusting or striking device,” and has no purpose other than to maim.[FN20]