The New York criminal defense attorneys and former Manhattan prosecutors at Saland Law PC routinely get telephone calls from or represent individuals charged with Criminal Possession of a Weapon in the Fourth Degree in violation of New York Penal Law 265.01. Often times the story starts off the same. Not knowing it was crime to possess certain knives, a person is stopped after the police observe the clip of a knife outside their pocket. Ultimately, a knife is recovered and the police claim that the knife is a “gravity knife.” Whether their arrest is in Manhattan, Brooklyn, the Bronx, Queens or anywhere in New York, the crime is the same. That is, Criminal Possession of a Weapon in the Fourth Degree is a misdemeanor punishable by up to one year in jail. It makes no difference if the person is issued a NY Desk Appearance Ticket, put through the arrest process or it is their first brush with the law.
As I have noted in the past, New York Penal Law 265.01(1) is a per se offense, meaning, the possession of certain weapons is an automatic crime. Possession of a “gravity knife” is one of the specified weapons regardless if your intended use was for work or protection. Having said that, one imperative step, which is fairly obvious, is to ascertain if in fact the alleged “gravity knife” is in fact a “gravity knife.” As both a prosecutor and a New York criminal defense lawyer I have seen police make a mistake as to the nature if the knife. In those cases where the weapon is wrongly alleged to be a “gravity knife” and there is no intent to use the knife in a criminal way, the case may be one which should be dismissed.
Although it seems fairly easy, a dispute may arise as to the nature of the knife and wether or not it qualifies as a “gravity knife.” Simply put, a “gravity knife,” defined under New York Penal Law 265.00(5) is a “knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” Again, seems fairly straight forward, right?
Well, what if that alleged “gravity knife” is a “butterfly knife?” What if the knife is one that opens with the force of gravity into place, but, unlike a true “gravity knife” it does not lock into place? Is there a violation of New York Penal Law 265.01(1)? If not a violation of New York Penal Law 265.01, is there a violation of any law?
The easy answer to this question is that the “butterfly knife” as described above is not a “gravity knife” and therefore, your mere possession of it is not a violation of New York Penal Law 265.01(1). See People v. Zuniga, 303 A.D.2d 773 (2nd Dept. 2003). However, do not think that because it is not a per se weapon possessing a “butterfly knife” may never be criminal. In fact, the possession of any knife with a blade size equal to or exceeding four inches is a violation of the New York City Administrative Code (10-133). Although only a violation, if you possess this knife, or any object for that matter, with the intent to use it unlawfully against another, you will face the “A” misdemeanor of Criminal Possession in the Fourth Degree pursuant to subsection two of New York Penal Law 265.01.
Lastly, and again equally important to know, New York law only requires that you knew you possessed a knife and not that you knew you possessed a particular type of knife. In other words, if you knowingly had a knife on your person, but you had no idea it was a “gravity knife,” your lack of knowledge as to the type of knife will not be a defense to its possession.
The above concepts are relatively straight forward in the New York Penal Law. However, the legal decisions, case law and statutes continually grow. For further information on weapon offenses such as Criminal Possession in the Fourth Degree, please review the New York Weapon Possession & Crime section of the Saland Law Website or the New York Weapon Possession section of the New York criminal lawyer blog.
Founded by two former Manhattan prosecutors, the New York criminal defense lawyers at Saland Law PC represent clients in all criminal matters throughout the New York City region.