New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon, delineates the type of weapons that are per se, aka, automatically, weapons in New York based on the law no matter how you intended on using them. If you knowingly possess the weapon, then you are guilty. No, you are not merely walking into a courtroom with your criminal lawyer and pleading guilty to a misdemeanor crime that is accompanied by a sentence of up to one year in jail, but you are guilty barring certain defenses, such as challenging the probable cause for your arrest and how you were searched. This is because there is a strict liability standard at trial assuming the prosecution proves their case beyond a reasonable doubt. Looking at it slightly differently, you always have the ability to challenge an arrest on legal, factual, evidentiary, and mitigation grounds, but without any defense, a jury or judge can find you guilty if the People meet their burden.
Putting aside this strict liability standard and whether or not the NYPD and District Attorney should be prosecuting honest, hard working, regular people who legally purchase one of these gravity knifes at Home Depot, Amazon, a local sporting goods store or any other retailer having no reason to believe that in New York it is a crime to possess such a “weapon,” other types of blades and objects can be considered dangerous instruments and weapons depending on the matter they are possessed or used. The statutory authority to prosecute these crimes is also Fourth Degree Criminal Possession of a Weapon, but is found in New York Penal Law 265.01(2). This entry will address a recent court decision examining the legal sufficiency of a PL 265.01(2) arrest and prosecution in connection to the possession of a box cutter.
In People v. Oldham, the heart of the dismissal motion was that the defendant did not possess a box cutter with the intent to use it unlawfully. The prosecution argued that the box cutter constituted a “dangerous knife” and that the legal presumption found in New York Penal Law 265.15(4) states that the possession of a dangerous knife is presumptive of one’s intent to use it unlawfully against another person.
Breaking the elements of PL 265.01(2) down into is two elements, the court first analyzed whether the defendant knowingly was in possession of a dangerous knife. The court recognized that even something that is not on its face a dangerous knife can be deemed as such when the circumstances of its possession and use are consistent with being a weapon. Here, the court considered the box cutter a weapon after the complaint described its sharp blade and the defendant’s statement that he possessed it for protection. According to the court, there was therefore reasonable cause to believe that the defendant considered it a weapon and not merely a tool.
Addressing the next element, the court examined whether or not even assuming it was a dangerous knife, whether the defendant had the intent to use it unlawfully against another person. Because the presumption that a person in possession of a dangerous knife is presumed to have the intent to use it against another person is a permissive one, a court need not follow this presumption. Instead, the court could go a different direction. As addressed by the court:
“Thus, the court must consider two competing inferences: unlawful intent by statutory presumption and lawful intent by reasonable inference. Notably, both inferences are drawn from the same allegation, affirmatively plead by the prosecution, that defendant told the officer he possessed the box cutter for protection. As the court sees no way to distinguish the relative strength of these inferences, the court finds that they are of equal and opposite strength (see, e.g., People v Dudley, 53 Misc 3d 679 [Crim Ct, New York County 2016]; People v Spry, 50 Misc 3d 1208 [A] [Crim Ct, New York County 2016]); but see, People v Monroe-Francis, 51 Misc 3d 1202 [A] [Crim Ct, New York County 2016]; People v Jones, 50 Misc 3d 1217 [A] [Crim Ct, New York County 2016]). The present information includes no allegations to tip the balance one way or the other. Since the facts and circumstances in the present case favor, equally, guilty intent and innocent intent, the reasonable cause standard is not met. For these reasons, the court finds that the second element of the offense — possession with the intent to use unlawfully against another — is insufficiently plead.”
Clearly, without any indicia of unlawful intent or any use other than mere possession and a statement that the box cutter was for self defense, the prosecution could not meet the legal sufficiency burden required at the pleading stage. Whether the weapon or knife was a pocket knife or something “scarier” looking, Oldham is a testament to the willingness of the courts to hold the District Attorney to his or her burden and not merely allowing them to provide less than the minimum evidence required. While I think we can all agree its not a good idea to carry a box cutter or any other type knife around, should you do so and the knife in question is not one that as a matter of law is illegal, it is incumbent upon you and your criminal defense lawyer to consider all legal options. Oldham no doubt is one of them.
To read more about New York Penal Law 265.01, Fourth Degree Criminal Possession of a Weapon, or any weapon crime in New York, Crotty Saland PC’s New York weapon possession page addresses many of the statutes law abiding citizens, residents and visitors encounter in New York.
Crotty Saland PC represents those accused of knife and other weapon possession in New York. Both Elizabeth Crotty and Jeremy Saland served as Assistant District Attorneys in the Manhattan District Attorney’s Office before establishing the law practice.