Criminal Possession and/or Use of a Biological Weapon in New York

A person may find themselves at risk for prosecution for the Criminal Possession or Use of a Chemical or Biological Weapon if they are either in possession of or involved in the use of a chemical or biological weapon. This crime is one of the most serious crimes that can be charged in New York and is categorized as “Terrorism.”

Sentences for this crime can be as severe as life in prison without the possibility of parole. You may also find yourself subject to additional charges from the Federal government and Foreign Governments.

Because sentences can be so severe, you should immediately contact a skilled criminal defense attorney to help ensure you have your best chance at retaining your freedom.

The Legal Definition of the Criminal Possession or Use of a Chemical or Biological Weapon

N.Y. Penal Law §§ 490.37-55 set out the legal definition of the Criminal Possession or Use of a Chemical or Biological Weapons. The Criminal Possession or Use of a Chemical or Biological Weapon is a felony under state criminal laws.

The “elements” of the Criminal Possession or Use of a Chemical or Biological Weapon are the things that the prosecutor must prove in order for you to be found guilty of this offense. Basically, for a defendant to be convicted in a criminal trial for the Criminal Possession or Use of a Chemical or Biological Weapon under N.Y. Penal Law § 490.37-55, some of the following must be true depending upon the crime with which you are charged:

Possession of a chemical or biological weapon
Circumstances evincing an intent to use such weapon
Use of weapon
Intent to influence government policy or intimidate or coerce civilians

Let’s delve a bit more deeply into these elements of the crime of assault to understand their meaning better.

Element #1: Possession

The definition of Possession is physical possession or control over a chemical or biological weapon.
This element applies to both possession and use of a Chemical or Biological Weapons.
This element can be satisfied by mere physical ownership of a chemical or biological weapon regardless of intent.
For example, Lucius has a briefcase full of anthrax (a known biological weapon). Lucius would be found to have physical possession of a biological weapon.

Element #2: Intent to Use

The definition of Intent to Use is circumstantial evidence supporting a conclusion that it is more likely than not that an individual intends to use a chemical or biological weapon in their possession.
This element does not require the use, and it merely requires the intent to use.
This element is required for Intent to use a Chemical or Biological Weapon.
For example, if Lucius had detailed maps of various government buildings and had prepared his anthrax briefcase to open automatically with a timer it is likely he would be found to have the intent to use a chemical or biological weapon.

Element #3: Use

The definition of Use is the actual use of a chemical or biological weapon
This element is only required for the use of a Chemical or Biological Weapon.
If Lucius from the above examples had actually left his briefcase in one of the government buildings and if it had deployed anthrax, then he would be deemed to have actually used a chemical or biological weapon.

Element #4: Intent to Influence Government or Intimidate or Coerce Civilians

The definition of Intent to Influence Government or Intimidate or Coerce Civilians is a manifested intention to use a chemical or biological weapon to either influence a government or to intimidate or coerce civilians.
This element is required for some degree of the possession or use of a Chemical or Biological Weapons.
If Lucius from the above examples had made a demand that the government changes policy, or he would deploy his anthrax, then he would likely be found to have manifested the intent to Influence Government or Intimidate or Coerce Civilians.
This element does not require the actual influencing of a government or the coercion or intimidation of civilians. It would be sufficient for Lucius to have begun planning his intimidation tactics and to have never actually followed through on them.
In People v. Jenner, person wished to change government policy on the requirement for supervision when registered sex offenders were near children. The defendant stated that he would get a gun and solve the problem once and for all implying he would attack the social services office.

Related Offenses

Charges of the Criminal Possession or Use of a Chemical or Biological Weapon may be brought in addition to, or in place of, charges for certain other related offenses, including:

Related Offense #1: Soliciting or providing support for an act of terrorism

The definition of Soliciting or providing support for an act of terrorism is providing support for an act of terrorism through material support or resources, or helping to plan, prepare, carry out or aid an act of terrorism. Or to help someone who has engaged in terrorism escape law enforcement.
This offense can be applied to anyone who is even loosely involved in the actions of another person who is engaged in terrorism. It is very broadly written and does not require you to engage in terrorism in order to be charged under it.

If Lucius from the above examples was a physician in a research laboratory conducting permitted research legally on anthrax and he stole samples from his lab to give to another person who intended to use them for terrorism, he would likely be found to have provided support for an act of terrorism.

Related Offense #2: Terroristic Threats

The definition of Terroristic Threats is making a threat to coerce or intimidate the public or to influence government.
This offense applies to the threat of terrorism being made in order to achieve some personal or political result.
In People v. Adams, it was held that someone who informed a judge that they would be “hung from the highest tree, from a branch of the highest tree, for treason” after they refused to reverse another judge’s ruling was not guilty of terroristic threats as the statements were made in an excited manner during a stressful time.

Related Offense #3: Terrorism

The definition of Terrorism is murder, assassination, or kidnapping to serve a political or social purpose.
This offense applies in situations in which someone engages in actions that result in death or kidnapping to serve a political end.
In People v. Morales, it was found that a gang member who went to the home of a rival gang member and discharged a weapon killing a child inside was not guilty of terrorism as the target was not the general public.

What are some of the essential and impactful cases?

There are no essential or impactful cases that directly cite the laws regarding the Criminal Possession or Use of a Chemical or Biological Weapons. There are, however, some cases that apply to related offenses and which can be useful in better understanding the law surrounding the Criminal Possession or Use of a Chemical or Biological Weapons.

In People v. Adams, it was held that someone who informed a judge that they would be “hung from the highest tree, from a branch of the highest tree, for treason” after they refused to reverse another judge’s ruling was not guilty of terroristic threats as the statements were made in an excited manner during a stressful time.
However, in People v. Jenner, a person wished to change government policy on the requirement for supervision when registered sex offenders were near children. The defendant stated that he would get a gun and solve the problem once and for all implying he would attack the social services office.

When taken together, these cases demonstrate that for the element regarding Intent to Influence Government or Intimidate or Coerce Civilians. In Adams, the defendant was a desperate man who was upset by a legal decision.

His situation prevented him from being able to carry out his threat to lynch the judge who refused to modify the other judge’s order. In Jenner, however, it was entirely possible that Jenner would obtain and use a firearm to force a policy change.

Also relevant is People v. Morales, in which it was found that a gang member who went to the home of a rival gang member and discharged a weapon killing a child inside was not guilty of terrorism as the target was not the general public.

This shows that the elements describing civilians refer to unrelated and uninvolved individuals. If for example, Lucius from the above examples had been part of a terrorist cell and he had mistakenly killed several of his co-conspirators, he would not be found to have used the weapon against civilians.

What agencies detect, investigate, and prosecute this crime?

The Criminal Possession or Use of a Chemical or Biological Weapon is one of the most serious crimes investigated or prosecuted by any agency.

While this crime may initially be investigated by local police departments, depending upon the facts the Department of Homeland Security, the Federal Bureau of Investigation, and possibly international organizations such as INTERPOL, or the intelligence agencies of other sovereign nations may become involved in investigating the crime.

The prosecution will also generally involve the local district attorney, the State Office of the Attorney General, and may involve the Federal Office of the Attorney General.

Penalties for Violating N.Y. Penal Law § 490.37-55:

The Criminal Possession or Use of a Chemical or Biological Weapon is a felony. The potential penalties include:

The penalties for the Criminal Possession or Use of a Chemical or Biological Weapon range from a Class C Felony to a Class A-I Felony.

The Criminal possession of a chemical weapon or biological weapon in the third degree is a Class C Felony.The possible sentences for this crime range between a 3 ½ year in prison and a maximum sentence of 15 years in prison.

The Criminal possession of a chemical weapon or biological weapon in the second degree and the Criminal use of a chemical weapon or biological weapon in the third degree are a class B felony. Sentences for this crime can be up to 25 years in prison.

The Criminal use of a chemical weapon or biological weapon in the second degree is a class A-II felony.The Criminal possession of a chemical weapon or biological weapon in the first degree and the Criminal use of a chemical weapon or biological weapon in the first degree is a class A-I felony.

Both class A-I and A-II offenses may be punishable by life in prison without the possibility of parole.

Sentencing Enhancements

Because the Criminal Possession or Use of a Chemical or Biological Weapon are such serious crimes, there are no strict sentence enhancements. Rather there are degrees in which the crimes may be charged.

For example, if you engage in the Use of a Chemical or Biological Weapon with the intent to influence government policy you may be charged with the Use of a Chemical or Biological Weapon in the second or first degree rather than the third degree. This can result in considerably longer sentences.

What are some of the additional consequences of being convicted?

You will likely face very serious consequences if you are convicted of the Criminal Possession or Use of a Chemical or Biological Weapon. In 2007 New York abolished the death penalty; however, under federal law, you may be punished by death or imprisoned for life.

You may also be charged an amount not to exceed $100,000 for each violation. Because these crimes are felonies, you may also face immigration consequences and may have your legal status revoked if you are not a United States citizen. You will also face serious social ramifications.

Legal Defenses to the Criminal Possession or Use of a Chemical or Biological Weapon

Nobody wants to go to jail or pay a fine—and nobody wants a conviction for the Criminal Possession or Use of a Chemical or Biological Weapon on their record.

People may start to associate you with this crime, even though they do not understand the specifics of your case. There are several powerful legal defenses you can use to fight these charges.

They include:

Defense #1: Lack of Intent

Chemical or Biological Weapon is that many elements require intent.
In People v. Adams, it was held that someone who informed a judge that they would be “hung from the highest tree, from a branch of the highest tree, for treason” after they refused to reverse another judge’s ruling was not guilty of terroristic threats as the statements were made in an excited manner during a stressful time.

This shows that in cases where there was no real intent to influence the government or intimidate or coerce the public, this element may be nullified resulting in a lower sentence

Defense #2: Legal Possession

The second defense for the Criminal Possession or Use of a Chemical or Biological Weapon is that the possession or use was for a legal purpose.^[24]
Certain medical research laboratories keep dangerous materials such as anthrax and the smallpox virus in storage for testing.
The use of these chemical or biological weapons on testing materials does not constitute a violation of the law.

These are just some of the defenses a skilled criminal defense attorney might use to help ensure you have your best chance at securing your freedom. All strategies will vary depending upon the specifics of your case.

Call us for help

For questions about N.Y. Penal Law § 490.37-55 or the Criminal Possession or Use of a Chemical or Biological Weapon, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us.

This crime is one of the most serious crimes that can be charged in New York or in the United States and may possibly involve a related Federal Death Penalty charge. It is therefore absolutely vital to your future life and liberty that you contact a skilled criminal defense attorney such as those at our firm if you or a loved one are charged with the Criminal Possession or Use of a Chemical or Biological Weapon.

Our attorneys are standing by to assist you with your case. We have local criminal law offices in your area.