PEOPLE v. VOLTAIRE (2007)

Defendant is charged with Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[1] ) and AC 10-133(B), for allegedly possessing a gravity knife on October 30, 2006, at approximately 5:22 PM, at 2839 Bedford Avenue in Kings County.   By Decision and Order rendered August 27, 2007, this court denied defendant's motion to suppress the gravity knife that Police Officer Louis Olewinski recovered from him, following a suppression hearing.   Defendant now moves this court to declare that PL § 265.01(1) is unconstitutional as applied to his conduct.   For the reasons that follow, the motion is denied.

The Parties' Contentions

Defendant argues that PL § 265.01(1) is unconstitutionally vague and overbroad as applied to him because the statute omits a mens rea requirement, is so broad that it irrationally bans ordinary household objects, and is so vague that it allows discriminatory police enforcement.   According to defendant, the statute is constitutionally defective because he could be convicted of violating it even though he did not know that the knife in his possession was a gravity knife.

The People respond that the state legislature enacted PL § 265.01(1) to prohibit possession of specifically identified per se weapons, which have no legitimate purpose and are only utilized as weapons.   The People argue that the statute clearly defines the mechanism which distinguishes a gravity knife from other types of knives, whose possession is not unlawful unless the possessor intends to use one unlawfully against another, and therefore it is neither unconstitutionally vague nor overbroad.

Analysis

 In seeking to have the court declare that Penal Law § 265.01(1) is unconstitutionally vague as applied to him, defendant has a heavy burden.   An enactment of the legislature carries a strong presumption of constitutionality.  People v. Stuart, 100 N.Y.2d 412, 422, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003);  People v. Scalza, 76 N.Y.2d 604, 607, 562 N.Y.S.2d 14, 563 N.E.2d 705 (1990);  People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355 (1988);  People v. Scott, 26 N.Y.2d 286, 291, 309 N.Y.S.2d 919, 258 N.E.2d 206 (1970).  “[S]imply labeling a challenge as applied to' does not in any way alter the presumption of constitutionality.”  People v. Cintron, 13 Misc.3d 833, 845, 827 N.Y.S.2d 445 (Sup. Ct., Bronx County 2006).   One who seeks to invalidate a statute must demonstrate that it is unconstitutional beyond a reasonable doubt.  Scalza, 76 N.Y.2d at 607, 562 N.Y.S.2d 14, 563 N.E.2d 705;  Scott, 26 N.Y.2d at 291, 309 N.Y.S.2d 919, 258 N.E.2d 206.   In determining whether a statute is unconstitutional as applied, the court must consider only whether the statute can be constitutionally applied to the defendant under the particular facts of the case.  Stuart, 100 N.Y.2d at 421, 765 N.Y.S.2d 1, 797 N.E.2d 28;  People v. Garcia, 3 Misc.3d 699, 701, 777 N.Y.S.2d 846 (Sup. Ct., New York County 2004), modified, 29 A.D.3d 255, 812 N.Y.S.2d 66 (1st Dept.2006).   If the statute is not impermissibly vague as applied to the defendant, and provides the defendant with adequate notice and the police with clear criteria, the court's inquiry is at an end.  Stuart, 100 N.Y.2d at 422, 765 N.Y.S.2d 1, 797 N.E.2d 28.   Indeed, one appellate court has recently rejected an as-applied constitutional challenge to Penal Law § 265.01 (1) by a defendant convicted of mere possession of a gravity knife.  People v. Wang, 17 Misc.3d 133, 2007 WL 3197660 (App. Term, 1st Dept.2007).

 Defendant argues that Penal Law § 265.01(1) is unconstitutionally vague as applied to him, because he used the knife which Officer Olewinski recovered for legitimate purposes, did not have actual knowledge that the knife fit the definition of a gravity knife, and was not able to operate it as such.   The record contains no such facts, however.   Defendant chose not to testify at the suppression hearing, and has not provided an affidavit based on personal knowledge with his motion papers.   Defendant also argues that the statute is so vague that citizens must guess which knives are prohibited, and that it permits law enforcement officials to apply and enforce the statute arbitrarily.   For the reasons that follow, defendant cannot sustain his heavy burden of demonstrating unconstitutionality.

The legislature has the “undoubted power” to declare possession of “dangerous and foul weapons seldom used for justifiable purposes” unlawful without proof of other criminal intent.  People v. Persce, 204 N.Y. 397, 401-02, 97 N.E. 877 (1912).   However, “there must be some reasonable relationship between the public safety, health, morals or welfare and the act prohibited” in order for a so-called strict liability crime to withstand constitutional scrutiny.   Staples v. United States, 511 U.S. 600, 607, fn. 3, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)(“use of the term strict liability' is really a misnomer”);  People v. Munoz, 9 N.Y.2d 51, 58, 211 N.Y.S.2d 146, 172 N.E.2d 535 (1961)(statute prohibiting possession of any knife or sharp pointed instrument by person under age 21 unconstitutionally vague and overbroad).   “The history of the gravity knife provision as well as the legislative scheme distinguishing dangerous instruments' from per se' weapons [in PL § 265.01(1) ] demonstrates a plan only to ban those items designed to be used as weapons.”   United States v. Irizarry, 509 F.Supp.2d 198, 210 (U.S. Dist. Ct., E.D.N.Y.2007)(Weinstein, J.)(suppression granted, where item clipped to defendant's pants was not a gravity knife, but a common utility knife used in defendant's work).

Penal Law § 265.01(1) provides that:

A person is guilty of criminal possession of a weapon in the fourth degree when:

(1) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switch blade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slugshot, shirken or “Kung Fu” star.

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.”   PL § 265.00(5).   A gravity knife must have a blade which locks in place automatically upon release without any effort by the user, and cannot require a manual locking mechanism.  People v. Zuniga, 303 A.D.2d 773, 774, 759 N.Y.S.2d 86 (2d Dept.), appeal withdrawn, 100 N.Y.2d 567, 763 N.Y.S.2d 825, 795 N.E.2d 51 (2003).   A gravity knife, like the other devices in the list, is per se unlawful to possess because it can seldom be used for any legitimate purpose and is clearly used unlawfully as a weapon.  People v. Talbert, 107 A.D.2d 842, 843, 484 N.Y.S.2d 680 (3d Dept.1985);  see also United States v. Irizarry, 509 F.Supp.2d at 209 (“The legislature's plan in making items such as gravity knives per se' weapons under New York law was to ban only those items that are manufactured as weapons”).

The mens rea element of knowing possession is implied in Penal Law § 265.01(1).   The People must prove that a defendant charged with possession of a gravity knife knew that he had a knife, although they need not prove that the defendant knew that the knife complied with the statutory definition of a gravity knife.  People v. Berrier, 223 A.D.2d 456, 457, 637 N.Y.S.2d 69 (1st Dept.), lv. denied, 88 N.Y.2d 876, 645 N.Y.S.2d 450, 668 N.E.2d 421 (1996).   Moreover, under PL § 265.15(4), proof of defendant's possession of a gravity knife creates a presumption that he or she had the intent to use it unlawfully against another.   See People v. Smith, 4 Misc.3d 141(A), 2004 WL 2101828 (App. Term, 1st Dept.), lv. denied, 3 N.Y.3d 761, 788 N.Y.S.2d 677, 821 N.E.2d 982 (2004), citing People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396 (1971)(court recognized that possession of dangerous drugs created inference knowledgeable possession);  People v. Laramore, 1 Misc.3d 5, 7, 764 N.Y.S.2d 299 (App. Term, 2d Dept.), lv. denied, 100 N.Y.2d 621, 767 N.Y.S.2d 405, 799 N.E.2d 628 (2003)(presumption of unlawful intent based upon mere possession under PL § 265.15(4) did not apply to knife which was not a per se weapon);  People v. Visarities, 220 A.D. 657, 658, 222 N.Y.S. 401 (1st Dept.1927)(mere possession of per se weapon, if knowing and voluntary, constitutes the offense, based upon dangerous character of the weapon).

Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), on which defendant relies, is distinguishable.   In Staples, whose holding the court emphasized was “a narrow one,” 511 U.S. at 619, 114 S.Ct. 1793, the court reversed a conviction under the National Firearms Act, 26 USC §§ 5801-5872, which criminalizes possession of unregistered firearms, because the government had not been required to prove that Staples knew his weapon was a “machine gun” as defined in the statute.   In reaching its conclusion, the court noted the “long tradition of widespread lawful gun ownership by private individuals in this country,” 511 U.S. at 610, 114 S.Ct. 1793, and also that “[g]uns in general are not dangerous devices or products or obnoxious waste materials ․ that put their owners on notice that they stand in responsible relation to a public danger.” '  511 U.S. at 610-11, 114 S.Ct. 1793.   Simply put, the Supreme Court majority agreed with the Fifth Circuit's conclusion that Congress could not have meant to subject “law-abiding, well-intentioned citizens” to a possible ten-year prison term “if ․ what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.”  511 U.S. at 615, 114 S.Ct. 1793.   In contrast to guns, gravity knives have long been illegal to possess.   See United States v. Irizarry, 509 F.Supp.2d at 206-08 (surveying history of PL § 265.01[1] and of federal Switchblade Knife Act, 15 USC §§ 1241-44, passed in 1958).   Moreover, even the Staples court noted that with respect to public welfare offenses, like PL § 265.01(1), “we have not required that the defendant know the facts that make his conduct fit the definition of the offense.”  511 U.S. at 607, fn. 3, 114 S.Ct. 1793.¹

To convict defendant under the statute, the People must also prove at trial that the knife was in fact a gravity knife.   If the People fail to do so, defendant must be acquitted regardless of his knowledge of how the knife operated.   A defendant also cannot be convicted of Penal Law § 265.01(1) if the gravity knife is inoperable.  People v. Smith, 309 A.D.2d 608, 609, 765 N.Y.S.2d 777 (1st Dept.), lv. denied, 1 N.Y.3d 580, 775 N.Y.S.2d 796, 807 N.E.2d 909 (2003)(People proved operability of gravity knife where detective twice operated the knife, although knife malfunctioned on some attempts);   People v. Zuniga, 303 A.D.2d at 774, 759 N.Y.S.2d 86 (conviction for possession of gravity knife reversed, where it was undisputed that defendant possessed “butterfly knife” that required manual locking);  People v. Perez, 123 A.D.2d 721, 506 N.Y.S.2d 961 (2d Dept.1986), lv. denied, 70 N.Y.2d 653, 518 N.Y.S.2d 1047, 512 N.E.2d 573 (1987)(count of criminal possession of a weapon in the fourth degree dismissed, where People failed to establish operability of knife as a gravity knife);  People v. Wang, 17 Misc.3d 133, 2007 WL 3197660, *1;  see also United States v. Irizarry, 509 F.Supp.2d at 210 (suppression granted because knife was common utility knife, not gravity knife).   Therefore, the statute provides clear notice as to the specific characteristics which define an illegal gravity knife.   Furthermore, there is a rational connection between the regulation of dangerous knives and public safety.  People v. Ortiz, 125 Misc.2d 318, 327, 479 N.Y.S.2d 613 (Crim. Ct., Bronx County 1984).

Finally, the statute does not permit arbitrary police conduct, and Officer Olewinski's action was not arbitrary.   The credible testimony at the suppression hearing established that Officer Olewinski immediately recognized the unique handle of a gravity knife jutting out of defendant's pocket while defendant was standing near the entrance of a public school while students were leaving the school grounds.   There is simply no evidence in the record to support defendant's present claim that he did not know his knife was a gravity knife, and this court will not declare a statute unconstitutional based on unsworn allegations regarding defendant's knowledge or ability to operate the gravity knife.   Cf. United States v. Irizarry, 509 F.Supp.2d at 201-05 (reviewing extensive testimony at suppression hearing regarding operation of gravity knives and of folding lock-back utility knives).

Conclusion

For these reasons, defendant's motion to declare PL § 265.01(1) unconstitutional as applied to him is denied.

This opinion constitutes the decision and order of the court.

FOOTNOTES

1.   This court declines to follow People v. Small, 157 Misc.2d 673, 598 N.Y.S.2d 431 (Sup. Ct., New York County 1993), which is not binding on this court and which appears to have no subsequent history.

MIRIAM R. BEST, J.