Affirmative defense for criminal possession of a weapon where the weapon is a gravity knife and the person did not intend to use it unlawfully

This measure would amend section 265.15 of the Penal Law to provide an affirmative defense to criminal possession of a gravity knife.

A gravity knife is defined as "any 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" (Penal Law § 265.00 (5)). Gravity knives were first made illegal during the 1950's, as a response to gangs who purchased them as a "legal" alternative to switchblades (see People v Irizarry, 509 F.Supp 2d 198 (EDNY 2007)). More recently, however, common utility knives that are neither designed nor manufactured as gravity knives fit the technical definition of a gravity knife because an adept user can open them by the use of centrifugal force. These tools, designed for cutting sheet rock, carpeting and window screens have become popular tools widely circulated in general commerce by large retail stores such as Home Depot. In 2006 alone, one manufacturer sold over 1.7 million nationwide. Although New York has successfully prosecuted several large retail stores for selling such utility knives (see Eligon, 14 Stores Accused of Selling Illegal Knives, NY Times, June 17, 2010), utility knives are still widely available in the tri-state area and throughout most of the country.

Criminal possession of a weapon, where the weapon is a gravity knife, is a strict liability offense. It therefore does not matter if the person does not realize that the knife he or she possesses is an illegal gravity knife, nor is it relevant if the possessor only intends to use the knife for innocent purposes, such as in connection with his or her employment. The wide availability of utility knives that were never designed to be gravity knives can therefore result in an unwitting possessor being arrested and prosecuted for criminal possession of a weapon. Contractors or construction laborers possessing a common utility knife are subject to arrest and conviction for a class A misdemeanor. Where the person has previously been convicted of any crime in his or her lifetime, such possession is a class D felony offense carrying a penalty of up to seven years imprisonment. As a strict liability offense, there is no meaningful defense.

This measure is designed to afford relief to those individuals who innocently possess such knives. We recognize that a gravity knife can be a dangerous instrument, and, when possessed with criminal intent, poses a serious threat to public safety. This measure therefore leaves in place the crime of criminal possession of a gravity knife under sections 265.01 and 265.02 of the Penal Law. However, in order to provide some measure of relief where a person possesses the knife without intent to use it unlawfully, this measure allows a defendant to raise an affirmative defense to criminal possession of a gravity

knife by establishing that the possession was innocent. As a practical matter, we understand that, in many cases, to assert the affirmative defense, a defendant will likely be compelled to testify in support of the affirmative defense. On balance, however, we believe this is the best approach to insure public safety while establishing an appropriate outcome for innocent possessors.

This measure would take effect 30 days after it shall have become law and shall apply to all pending trials where jury deliberations have not yet commenced.

Legislative History: None. New proposal.