New York Penal Law § 490.45: Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree

New York Penal Law § 490.45 criminalizes the possession of chemical or biological weapons, which are defined as substances that have the potential to cause harm to humans, animals, or the environment. Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree is the most serious charge related to the possession of these substances, and carries severe penalties.

Under New York law, a person is guilty of Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree if they possess a chemical or biological weapon with the intent to use it unlawfully against another person, or with the intent to sell or dispose of it unlawfully. Possession of a chemical or biological weapon with the intent to use it for a lawful purpose, such as scientific research or medical treatment, is not a crime.

The possession of chemical or biological weapons is taken very seriously by law enforcement officials, and individuals found guilty of this offense are likely to face significant prison time and fines. The severity of the sentence reflects the potential harm that these weapons can cause, and the threat that they pose to public safety.

People v. Liang, 123 A.D.3d 1125 (2d Dep't 2014). In this case, the defendant was convicted of Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree under New York Penal Law § 490.45. The defendant was found to be in possession of a chemical substance called dimethyl sulfoxide (DMSO), which can be used as a solvent but can also be used as a chemical weapon.

The defendant argued that he did not possess the DMSO with the intent to use it unlawfully, but rather for personal use as a pain reliever. However, the court rejected this argument, finding that the defendant had failed to establish that he had a legitimate medical purpose for possessing the substance. The court affirmed the defendant's conviction and sentence of 25 years to life in prison.

1. Criminal possession of a chemical weapon or biological weapon in the third degree. New York Penal Law section 490.37
2. Criminal possession of a chemical weapon or biological weapon in the second degree. New York Penal Law section 490.40
3. Criminal use of a chemical weapon or biological weapon in third degree. New York Penal Law section 490.47
4. Criminal use of a chemical weapon or biological weapon in second degree. New York Penal Law section 490.50
5. Criminal use of a chemical weapon or biological weapon in first degree. New York Penal Law section 490.55

One potential defense against charges of Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree is to challenge the evidence of possession. In order to prove possession, the prosecution must establish that the defendant had control over the weapon, and knew of its presence and nature. If the prosecution cannot prove these elements beyond a reasonable doubt, the charges may be dismissed or reduced.

Another possible defense is to challenge the intent element of the offense. In order to be found guilty of this offense, the prosecution must establish that the defendant possessed the weapon with the intent to use it unlawfully against another person or to sell or dispose of it unlawfully. If the defense can show that the defendant had a lawful purpose for possessing the weapon, or did not have the requisite intent to use or sell the weapon unlawfully, the charges may be dismissed or reduced.

Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree under New York Penal Law § 490.45 is classified as a class A-I felony. The sentencing guidelines for a class A-I felony in New York are a determinate sentence of imprisonment for a minimum of 15 years and a maximum of life imprisonment. Additionally, the court may impose a fine of up to $500,000 or twice the gain from the offense, whichever is greater.

A person is guilty of criminal possession of a chemical weapon or biological weapon in the first degree when he or she possesses:

1. any select chemical agent, with intent to use such agent to:
   1. cause serious physical injury to, or the death of, another person; and
   2. intimidate or coerce a civilian population;
      1. influence the policy of a unit of government by intimidation or coercion; or
      2. affect the conduct of a unit of government by murder, assassination, or kidnapping.
2. any select chemical agent, with intent to use such agent to cause serious physical injury to, or the death of, more than two other persons; or
3. any select biological agent, with intent to use such agent to cause serious physical injury to, or the death of, another person.

Criminal Possession of a Chemical Weapon or Biological Weapon in the First Degree Is a Class A-I Felony

If you are charged with Criminal possession of a chemical weapon or biological weapon in the first degree under New York Penal Law § 490.45, you could face severe consequences if convicted. This offense is a class A-I felony, the most serious category of felony, and carries a maximum sentence of life imprisonment. In addition to imprisonment, you could also be fined up to $100,000 or twice the amount of gain from the offense, whichever is greater. If you are facing charges under this statute, it is essential to seek legal counsel immediately to protect your rights and interests. An experienced New York criminal lawyer can help you understand the charges against you, develop a strong defense strategy, and negotiate with the prosecutor if necessary. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County, and Westchester County.