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When Possessing a Knife isn’t a Crime: Fourth Degree Criminal Possession of a Weapon and Utilitarian Objects with Non-Criminal Uses

If George Orwell’s satirical theory of equality in “Animal Farm” applied to the New York Penal Law, then all knives would be created equal even if certain knives were more equal than others. Fortunately, as any criminal lawyer knows, the Penal Law does not allow for such untenable situations where no matter the knife or blade, possession would always constitute a misdemeanor or “more equal” felony offense. That said, and as routinely addressed by defense attorneys, depending on the blade in question, such as a switchblade that is a per se violation of PL 265.01(1), some knives are automatically considered weapons while others mandate that they are both “dangerous” as prescribed by law and intended to be used in an unlawful manner. These latter violations fall under PL 265.01(2).

In a recent Manhattan Criminal Court case, a presiding judge found that a knife disguised as a pen, aka, a penknife, did not violate the law as pleaded in the accusatory instrument and, therefore, dismissed the case for a lack of legal sufficiency. Evidently, all knives really are not created equal.

In People v. Kitchens, 2018NY034040, the accusatory instrument was straight forward. Simply, the police recovered a pen knife from the defendant’s pant pocket. Because the blade was not statutorily listed as a per se weapon, a violation of the second subsection of Criminal Possession of a Weapon in the Fourth Degree necessitated that the defendant must have possessed the alleged contraband with the intent to use unlawfully against another person and the blade must have been classified as a “dangerous knife.” Looking to the Court of Appeals decision in Matter of Jamie D., 59 NY2d 589, 592 (1983), to match this legal definition, the object must be one that is “characterized as a weapon” and not one that’s primary purpose, for example, is use as a work or to dining utensil. Taking the analysis one step further, in order for the New York County Criminal Court to find a violation of PL 265.01, the knife (i) had to be physically modified and converted into a weapon or (ii) the circumstance of its possession demonstrated the accused considered the blade to be a weapon and not to be used as a utensil.

Following the above rule, the Court disagreed with the People that because the blade was disguised as a writing utensil its dangerous nature was apparent. See In re Patrick L., 244 AD2d 244, 245 (1st Dept 1997) [noting that a penknife is a “utilitarian object” which is “often carried for lawful purposes”]; People v. Rivera, 182 Misc 2d 244, 245 [Crim Ct, New York County 1999] [allegations that knife with four-inch blade was concealed by pen insufficient to establish knife was “dangerous knife” or a “weapon” under PL 265.01]). Ultimately, because the “weapon” was not in fact a “weapon” and therefore the presumption that it was to be used unlawfully did not apply (a pen knife could have non-criminal uses), the defendant made no statement that suggested he believed it to be a weapon, and the defendant did not use the sharp object with the apparent intent to do so unlawfully against another person, the pleadings within the four corners of the accusatory instrument were insufficient. After all, there could genuinely be numerous uses for such a tool and to presume it was possessed for violent purposes required more than a mere physical description.

While the Court dismissed the charges, certain pleadings could have changed the outcome. If the defendant was alleged to have lunged at someone or brandished the penknife, then the intent to use the object as a weapon likely would have been satisfied. Similarly, if the complaint alleged that the defendant stated he possessed it for protection in case someone attacked him, then it would be clear by those words that the primary purpose and use of the object was as a weapon even if for potential self-defense. In these circumstances, whether or not the District Attorney proved the case beyond a reasonable doubt at trial, a motion to dismiss would likely have failed.

To learn more about New York weapon crimes involving knives, metal knuckles, firearms and other per se weapons as well as those deemed as such due to the manner of their use, follow the links found in this entry.

Crotty Saland PC, a New York criminal defense firm founded by former Manhattan prosecutors, represents clients throughout the boroughs of New York and the Hudson Valley.

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