Dangerous Knives that are Not Gravity Knives or Switchblades: When Does Possession and Unlawful Use Violate New York Penal Law 265.01

It almost seems as if every day we read in the papers or see in the news that a person used a firearm to kill innocent victims. Simply, such acts are horrendous and deplorable. Law enforcement should be commended for their efforts to protect all of us. With this in mind, it is also important that the courts and criminal defense lawyers make sure that prosecutors and the police respect and maintain their burden to follow the law as well whether a violation or wrongful arrest is malicious or unintentional. While most people would argue that knives are not guns in terms of potential dangers, both have the ability to be devastating weapons. In part, this is likely why District Attorney’s Offices in New York City and elsewhere take a hard stance against gravity knife and other weapon crimes in violation of Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01. Whether you were issued a Desk Appearance Ticket or you have an extensive criminal history, do not expect to be offered any deal at your arraignment. More often than not, a charge of PL 265.01 remains in place until and if your criminal lawyer can articulate why prosecutors should deviate from their guidelines.

Why is all of the above relevant? The law in New York doesn’t distinguish between certain knives illegally purchased that are “blatantly” dangerous and those that were purchased as a tool at a hardware store. At bottom, a gravity knife is a gravity knife no matter where you purchase it. As a misdemeanor, this crime is punishable by as much as one year in jail and will stick you with a permanent criminal record upon conviction. Knowing all of this and reading through a bit of my rant, let’s now address the Penal Law and the crime of Fourth Degree Criminal Possession of a Weapon where the arrest charge of PL 265.01(2). Does the strict liability standard apply to all knives and if not, when is a “regular” knife possessed in violation of the New York Penal Law?

In People v. Dudley, 2016 NY Slip Op 26258, (NY City Court Criminal Court), the accusatory instrument charging the defendant with Criminal Possession inf the Fourth Degree stated that a police officer recovered a “dangerous knife” with an approximately six-inch blade. While the knife was recovered from the defendant’s backpack, the defendant stated that he possessed the knife for “for protection”. Unlike the crime of PL 265.01(1) which is a strict liability offense for possessing certain items such as gravity knives or switchblade knives no matter what there intended use is, PL 265.01(2) requires the possession of a dangerous instrument accompanied with an intent to use unlawfully. Charged with the latter, the defendant here challenged the legal sufficiency where the knife in question was not one set forth in the statute and was recovered from his backpack.

The first step taken by the Court in its legal analysis was whether the knife in question was a “dangerous knife”. Recognizing there is no legal or statutory definition of that term, the Court looked at other cases and agreed that “‘in context a dangerous knife is a knife that may be characterized as a weapon'” (People v Campos, 93 AD3d 581, 582 [1st Dept 2012], citing Matter of Jamie D., 59 NY2d 589, 592 [1983]). Even a rounded butter knife “‘may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon'” (Matter of Jamie D. at 591). Simply, this knife, as it was used or intended to be used for protection, was not akin to a eating utensil.

Satisfied with the “dangerous knife” prong of its analysis, the Court then examined PL 265.15(4) that in pertinent part states “[t]he possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.” Despite this presumption, the Court noted that it is a permissive presumption and not a mandatory one. In other words, the fact finder is not mandated to follow this legal presumption and can choose to ignore it.

In ultimately completing its review of unlawful intent by statutory presumption and lawful intent by reasonable inference, the Court disagreed with the prosecution that like a firearm is similar to a knife and, as such, there can be no justification to the possession of a per se weapon. Why? Statutorily, a knife is not a per se weapon unless it is of the type specified in PL 265.01(1) such as a gravity or switchblade knife. Shooting down this contention by the District Attorney, the Court stated:

“Notably, both inferences are drawn from the same allegation, affirmatively plead by the prosecution, that defendant told the officer he possessed the knife 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 Spry, 50 Misc 3d 1208 [A] [Crim Ct, New York County 2016]). Further, the information offers no other allegations that 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.”

Fact specific, this case, as well as Spry (addressed in an earlier blog entry), is extremely valuable to both you and your criminal defense lawyer where you are charged with subsection two of PL 265.01, Criminal Possession of a Weapon in the Fourth Degree. In fact, this decision may be one of the strongest arguments you have in your arsenal.

To learn more about New York weapon crimes involving knives and other dangerous instruments, review this blog, the links above and below, as well as the New-York-Lawyers.org website.

Established by two former Manhattan Assistant District Attorneys, Saland Law PC’s New York City based criminal lawyers represent clients in criminal investigations, arrests and trials throughout the region.

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