New York Penal Code § 270.05: Unlawfully possessing or selling noxious material

In order to maintain public safety, New York has enacted several laws that make it illegal to possess objects and substances that could put the public at risk. One class of substances that is prohibited is noxious material. Under New York Penal Code § 270.05 you will be charged with unlawful possessing or selling noxious material if you possess noxious material under circumstances evincing an intent to use it to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace. "Noxious material" is defined as any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person. Under the statute if you are found to be in possession of noxious material, it is not necessary for the prosecutor to prove that your intent was to inflict physical injury or to cause annoyance. Possession of noxious material is presumptive evidence of such intent.

Example

Michael, David and Kevin decided to make extra money by selling helium-filled balloons to passersby. They secured 4 large tanks of helium. Upon purchasing a helium-filled balloon, some customers inhaled the helium from the balloon. A police officer observed the 3 men filling the balloons with helium and selling them. After examining the tanks the officer arrested the 3 men, who were later charged with unlawfully possessing or selling noxious material.

Related Offenses
  1. Unlawfully dealing with fireworks and dangerous fireworks: New York Penal Code § 270.00
  2. Creating a hazard: New York Penal Code § 270.10
Defenses

In order for you to be found guilty of unlawfully possessing of selling noxious material, the prosecutor must prove that the material was in fact noxious. While the statute does not provide a list of materials that are noxious, it defines a noxious substance as one that is capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person. However, if you can show that the substance involved in your case falls short of the definition of noxious, you would not have committed the crime of unlawfully possessing or selling noxious material. In addition, you would not have committed the crime of unlawfully possessing or selling noxious material if the substance is a self-defense spray. Under New York Penal Code § 265.20, a self defense spray is a pocket-sized spray device that has a substance that is intended to produce temporary physical discomfort. Tear gas and pepper spray are considered self-defense sprays. However, if you sell a self-defense spray in manner that is in violation of the law, then you could prosecuted for unlawfully possessing or selling noxious material.

Sentence

Because unlawfully possessing or selling noxious material is a class B misdemeanor if you are convicted you could be sent to jail for up to 3 months and you may be ordered to pay a fine of up to $500. It is also possible that in lieu of jail the court may order you to serve a probation term of 1 year.

New York Penal Code § 270.05: Unlawfully possessing or selling noxious material
  1. As used in this section, "noxious material" means any container which contains any drug or other substance capable of generating offensive, noxious or suffocating fumes, gases or vapors, or capable of immobilizing a person.

  2. A person is guilty of unlawfully possessing noxious material when he possesses such material under circumstances evincing an intent to use it or to cause it to be used to inflict physical injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace.

  3. Possession of noxious material is presumptive evidence of intent to use it or cause it to be used in violation of this section.

  4. Bank security devices not prohibited. Notwithstanding the provisions of subdivision one of this section, it shall not be unlawful for any bank, national banking association, trust company, savings bank, savings and loan association, industrial bank, or credit union to store, possess, transport, use or cause to discharge any bank security device as described in subdivision one of § 270.00 of this chapter; nor shall it be unlawful for any manufacturer, wholesaler, dealer, jobber or common carrier to manufacture, store, possess, transport, or sell such a device to banks, national banking associations, trust companies, savings banks, savings and loan associations, industrial banks or credit unions.

  5. Self-defense spray devices not prohibited. Notwithstanding the provisions of subdivisions two and three of this section, it shall not be unlawful for a person eighteen years of age or older to possess a self-defense spray device as defined in paragraph fourteen of subdivision a of § 265.20 of this chapter in accordance with the provisions set forth therein.

  6. A person is guilty of unlawfully selling a noxious material when he or she sells a self-defense spray device as defined in paragraph fourteen of subdivision a of § 265.20 of this chapter and such sale was not authorized in accordance with the provisions of paragraph fifteen of subdivision a of § 265.20 of this chapter.

Contact the Law Offices of Stephen Bilkis & Associates

Because unlawfully possessing or selling noxious material is a misdemeanor and not a felony you may be inclined not to take it seriously. It is still a crime with serious consequences. The best way to avoid these consequences is to be represented by someone with experience. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with felonies and misdemeanors in violation of New York state law and federal law. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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