New York Criminal Possession of a Weapon in the Fourth Degree: Is a Statement Alone that a Knife is for Self Defense Sufficient for NY PL 265.01(2)

Most arrests involving Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law 265.01, likely involve subsection one of this crime. This offense, PL 265.01(1) is the strict liability crime. That is, if you knowingly possess any weapon and it is of the type identified in this subsection – the most common is a gravity knife or switchblade knife, but others are set forth – then you are guilty of a class “A” misdemeanor. Distinct from subsection one, but an equally serious misdemeanor crime punishable by one year in jail, Fourth Degree Criminal Possession of a Weapon, PL 265.01(2), involves the possession of any weapon or dangerous instrument with the intent to use it unlawfully against another person. So, if your possession is not automatically a crime due to the nature of the weapon and the law requires that you have the intent to use it unlawfully against another person, how do the police establish a violation of PL 265.01(2)? More importantly, even with probably cause to arrest, how do prosecutors in the Manhattan District Attorney’s Office, Queens District Attorney’s Office, Brooklyn District Attorney’s Office or any other office throughout New York City and the State prove such a case beyond a reasonable doubt? This blog entry addresses the issue in conjunction with a recent and relevant criminal court decision.

In People v. Spry, 2015NY041954, NYLJ 1202747182146, at *1 (Crim., NY, Decided January 11, 2016), it was alleged in a criminal court complaint (an accusatory instrument drafted by prosecutors in New York City and police in suburban municipalities in Westchester and other counties) that in New York County (Manhattan), a police officer with the NYPD stopped a vehicle and retrieved a knife from defendant’s car. Although the accusatory instrument did not describe the knife and the defendant was not charged with having a gravity knife or switchblade knife that would violate PL 265.01(1), it was alleged that the defendant stated to the arresting officer that the knife was for self defense. More specifically, the defendant stated “It’s dangerous out here. I gotta protect myself.”

In order for you to be guilty of New York Penal Law 265.01(2), the prosecution must prove beyond a reasonable doubt that you “possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” At the pleading stage of the criminal process, the burden is whether the complaint as contained on the actual papers in court is legally or facially sufficient. Here, the court was tasked with whether there was reasonable cause to believe that the defendant knowingly possessed a “dangerous knife” and whether the allegations as contained in the accusatory instrument established that there was an intent to use it unlawfully against someone else (that person need not be named or identified).

Without a definition in the statute as to what is a “dangerous knife,” the court looked to the Court of Appeals for guidance (New York’s highest court). There they found some answers. A “dangerous knife” is one that “the circumstances of its possession…may permit a finding that on the occasion of its possession it was essentially a weapon rather than a utensil” Matter of Jamie D., 59 NY2d 589, 593 [1983]. Although not answering whether the accusatory instrument equated to proof beyond a reasonable doubt, the court did apply the law to the facts contained in the complaint to address whether the allegations were at this stage sufficiently presented. More specifically, the court based its decision on the defendant’s statement that the knife was to be used a weapon for self defense should the need arise. This use is not consistent with the Matter of Jamie D. where possession is criminal if it is akin to a weapon as opposed to a utensil. One does not use utensils, generally speaking, for self defense or secure utensils for a future purpose such as that. Coupling this statement with Penal Law 265.15(4), a legal presumption that alone can be used to determine a defendant possessed the knife with intent to use unlawfully against another person, the court moved towards finding legal sufficiency.

Before reaching a conclusion, however, the court also recognized that this presumption was not a mandatory one and merely permissive. This means a finder of fact could ignore such a presumption but when applying it, the fact finder must examine all of the facts before making a determination if it was reasonably likely the knife was to be used in a dangerous manner. Because this is not a per se weapon, such as a switchblade or gravity knife, and the totality of the circumstances as reflected in the complaint pointed equally to innocence and guilt, the court dismissed the allegations.

An important case relating to New York Penal Law 265.01(2), Fourth Degree Criminal Possession of a Weapon, it is worthy for review by your and your criminal defense lawyer when the circumstances arise and the allegations are similar. To learn more about weapon crimes in New York, review the Saland Law PC New York Weapon Crime Information Page and this blog for legal decisions and case results relating to firearms, knives and other weapon possession offenses.

Saland Law PC is a New York criminal defense firm located in Manhattan and representing clients throughout the New York City area. Both founding criminal defense attorneys at Saland Law PC served as prosecutors in the Manhattan, New York County, District Attorney’s Office prior to establishing the law practice.

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