Per se crimes are dangerous offenses in New York. These crimes, and the arrests that result, are based not on malicious or intentional violations of the law, but often on otherwise harmless and ignorant actions. One of the most common strict liability and per se crime in the New York Penal Law is that of Criminal Possession of a Weapon in the Fourth Degree, pursuant to NY PL 265.01. Although there are many different types of items or objects that are “automatic” weapons (by automatic we are not speaking of a firearm, but automatic in the sense that their mere possession is a crime regardless of how the object is being used), the most common involve possession of gravity knives. In its simplest terms, these knives open with the force of gravity when flicked from the wrist. It is fairly routine that tourists to New York City or even residents of Manhattan, Brooklyn or Queens are arrested and either fully processed before a judge or given a Desk Appearance Ticket (DAT) after a police officer observes a clip on the accused’s pocket or or sees the blade during a car stop. Sadly, most of these individuals legally purchased these knives online or at a chain store outside of New York City or New York State.
While gravity knife arrests according to New York Penal Law 265.01(1) rank the highest by volume, other per se weapons are the subject of the same prosecutions. Arguably, though less common, switchblade knives pose a more serious risk. The reason for this is obvious. Still a violation of PL 265.01(1), Fourth Degree Criminal Possession of a Weapon, switchblade knives are not sold by Home Depot, a fishing store or other similar establishments. Gravity knives are. Right or wrong, many prosecutors, judges and police officers perceive switchblade knives are evidence of some potential criminal act. Because of the seriousness of the allegation and the potential long term implications of a criminal conviction beyond spending time in jail, it is critical to examine the many defenses that may be available for an arrestee. One such defense is to review the complaint against you to determine whether the allegations as set forth in the accusatory instrument (the paper charging you is called an information) is legally sufficient.
In People v. Austin, 2014 SU 001992/3/4, NYLJ 1202657227723, at *1 (Dist., SUF, Decided May 21, 2014), the police arrested the defendant for possessing a per se weapon, and more specifically, a switchblade knife. As defined by law, a “‘switchblade knife’ means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.” See New York Penal Law 265.00(4). In supporting his contention that this particular knife violated the New York Penal Law because it was in fact a switchblade, the officer merely asserted that the knife in question was a switchblade. The officer did not elaborate as to how he reached that conclusion. For example, the officer did not state how, if at all, he tested the knife and applied pressure to the handle which in turn caused a spring to release a blade.
The question before the court was whether or not the officer’s conclusory statement that the blade in question was a switchblade knife, without any corroboration, was enough in terms of creating a sufficiently legal criminal complaint. Simply, it was not. Citing and paraphrasing People v. Dreyden, 15 NY3d 100 (2010), the court stated:
“‘[n]ot every knife is a weapon for purposes of Penal Law §265.01(1))’ (Id. at 103). The court underscored that another section of the same article of the criminal procedure law, CPL §265.00(5), defines the term ‘gravity knife,’ and ruled that ‘[a] conclusory statement that an object…is a gravity knife does not alone meet the reasonable cause requirement [of CPL §100.40(4)(b)]’ (Id. at 104). ‘[A]t the very least,’ the court continued, the complainant officer ‘should…explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant’s possession was a gravity knife'” (Id.).
While one might have a knee jerk reaction in finding the officer’s conclusion sufficient, the law is clear. Because an officer can be incorrect or wrong, the police officer must demonstrate through his training, experience and potential actions that the contraband or object in question violates the New York Penal Law.
To learn more about New York weapon crimes, including those related to both gravity knife and switchblade knife possession as set forth in NY PL 265.01, review the numerous entries found in this blog, follow the links in this entry or review the websites and content below.
The New York criminal lawyers and former Manhattan Assistant District Attorneys at Crotty Saland PC represent clients in all criminal matters throughout the New York City region and numerous suburban counties and municipalities.