NY Penal Law § 490.40: Criminal Possession of a Chemical Weapon or Biological Weapon in the Second Degree

New York Penal Law § 490.40 prohibits the possession of a chemical weapon or biological weapon in the second degree. The statute makes it illegal to possess select chemical agents or biological agents with the intention of using them unlawfully against others. Select chemical agents and biological agents are defined as substances that can cause death, serious physical injury, or substantial impairment of health. The possession of these substances with the intention of causing harm to others is a very serious offense that can lead to severe consequences.

To be convicted under this statute, the prosecutor must demonstrate that the defendant knowingly possessed select chemical or biological agents with the intent to use them unlawfully against another person or persons. Circumstantial evidence, such as statements, behavior, or previous activities of the defendant, may be used to prove intent.

Examples

1. People v. Heredia, 293 A.D.2d 292 (1st Dep't 2002). In this case, the defendant was convicted of Criminal Possession of a Chemical Weapon or Biological Weapon in the Second Degree under New York Penal Law § 490.40. The defendant was found to be in possession of materials and equipment that could be used to make a biological weapon, including a fermentation tank, a centrifuge, and various chemicals and substances.

The defendant argued that he did not possess the materials with the intent to use them unlawfully, but rather for scientific research purposes. However, the court rejected this argument, finding that the defendant had failed to establish that he had a legitimate scientific purpose for possessing the materials. The court affirmed the defendant's conviction and sentence of 8 years in prison.

2. People v. Zhang, 8 A.D.3d 481 (2d Dep't 2004). In this case, the defendant was convicted of Criminal Possession of a Chemical Weapon or Biological Weapon in the Second Degree under New York Penal Law § 490.40. The defendant was found to be in possession of various chemicals and substances that could be used to make a chemical weapon, as well as diagrams and instructions for making such a weapon.

The defendant argued that he did not possess the materials with the intent to use them unlawfully, but rather as part of a legitimate scientific research project. However, the court rejected this argument, finding that the defendant had failed to establish that he had a legitimate scientific purpose for possessing the materials. The court affirmed the defendant's conviction and sentence of 7 years in prison.

Related Offenses 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 first degree. New York Penal Law section 490.45 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 Sentence

New York Penal Law § 490.40, which criminalizes the criminal possession of a chemical weapon or biological weapon in the second degree, is a class C felony. The sentence for this offense includes a minimum of 3 years and a maximum of 15 years in prison, along with a possible fine of up to $100,000 for individuals and $200,000 for organizations.

New York Penal Law § 490.40: Criminal Possession of a Chemical Weapon or Biological Weapon in the Second Degree

A person is guilty of criminal possession of a chemical weapon or biological weapon in the second degree when he or she possesses any chemical weapon or biological weapon with intent to use such weapon to:

1. (a) cause serious physical injury to, or the death of, another person; and
   1. intimidate or coerce a civilian population;
   2. influence the policy of a unit of government by intimidation or coercion; or
   3. affect the conduct of a unit of government by murder, assassination, or kidnapping.
2. cause serious physical injury to, or the death of, more than two persons

Criminal possession of a chemical weapon or biological weapon in the second degree is a class B felony.

Contact Stephen Bilkis & Associates

If you are charged under New York Penal Law § 490.40, it is crucial to take immediate action to protect your rights and interests. Being charged with criminal possession of a chemical weapon or biological weapon in the second degree is a serious offense that can result in severe consequences, including imprisonment and hefty fines. An experienced New York criminal lawyer can help you understand the charges against you, assess the evidence and develop a strong defense strategy to protect your rights and interests. 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: Brooklyn, Long Island, Manhattan, Bronx, Nassau County, Queens, Staten Island, Suffolk County, and Westchester County.