Anyone with a Westlaw or LexisNexis Account?

[dd61999]

Mine has expired

I wanted to do research on the recent court cases in New York City regarding "gravity knives" and see how the judges are ruling on the cases.

Anybody have access. I know most libraries on Long Island have westlaw access except for mine.

 

[mp510]

People v. Voltaire
18 Misc.3d 408, --- N.Y.S.2d ----, 2007 WL 4151444
N.Y.City Crim.Ct.,2007.

(Kings County)

Relevant Quote:

Statute prohibiting criminal possession of a weapon in the fourth degree based on possession of a gravity knife was not unconstitutionally vague as applied to defendant; the statute provided clear notice as to the specific characteristics which defined an illegal gravity knife, there was a rational connection between the regulation of dangerous knives and public safety, and, credible testimony at suppression hearing established that police officer immediately recognized the unique handle of a gravity knife jutting out of defendant's pocket. U.S.C.A. Const.Amend. 14; McKinney's Penal Law § 265.01(1).

This was in response to the the petitoners claim (paraphrased) that the gravity knife definition was so vague that it was applied to a common knife (I believe the appeal did use the word "household tool") , that he did not believe was a gravity knife, and that he lacked mens rea.

 

[mp510]

People v. Kong Wang
17 Misc.3d 133(A), 851 N.Y.S.2d 72 (Table)
N.Y.Sup.App.Term,2007.
October 31, 2007

(New York County)

Important quote, for our purposes:

The trial evidence established that both knives possessed by defendant met the statutory definition of a gravity knife ( see Penal Law § 265.00[5] ). The testifying police officer demonstrated at trial that the knives opened with the use of centrifugal force. That the second knife did not open on the officer's initial attempt at trial did not preclude a finding of its operability as a gravity knife ( see e.g. People v. Smith, 308 A.D.2d 608 [2003] ). Finally, the Penal Law provisions defining “gravity knife” ( see Penal Law §§ 265.00 [5] and 265.01[1] ) are not impermissibly vague as applied to defendant ( see People v. Stuart, 100 N.Y.2d 414, 421 [2003] ).

Note, Kong Wang will not appear in the printed volume. It will only appear in the Reporter Table.

 

[mp510]

People v. Francis
17 Misc.3d 870, --- N.Y.S.2d ----, 2007 WL 3133179
N.Y.Sup.,2007.
September 28, 2007

(Bronx County)

People V. Francis was actually ruled in a favorable manner, for the knife community.

Important Excerpts:

Holdings: The Supreme Court, Bronx County, Michael A. Gross, J., held that:
(1) officer did not have probable cause to believe that defendant actually possessed illegal knife, and thus to seize knife and arrest defendant, and
(2) officer lacked reasonable fear for his safety, precluding seizure of knife incident to frisk for weapons.

Motion to suppress granted.

Police officer's observation of portion of clip protruding from defendant's pants pocket that might have been gravity knife did not provide officer with probable cause to believe that defendant actually possessed illegal knife, and thus to seize knife and arrest defendant. U.S.C.A. Const.Amend. 4; McKinney's Penal Law § 265.01(1).

At the time police officer observed portion of clip protruding from defendant's pants pocket that might have been gravity knife, after making inquiry to ensure that open bottle from which defendant was drinking did not contain alcohol, officer at most had founded suspicion of criminal activity justifying inquiry to obtain explanatory information, but not forcible seizure. U.S.C.A. Const.Amend. 4; McKinney's Penal Law § 265.01(1).

Police officer did not reasonably fear for his safety when, after making inquiry to ensure that open bottle from which defendant was drinking did not contain alcohol, officer observed portion of clip protruding from defendant's pants pocket that might have been gravity knife, given that defendant did not make furtive movements or threatening gestures, did not try to reach for knife or conceal it, and was completely cooperative with officer during encounter, and therefore officer could not seize knife incident to frisk for weapons. U.S.C.A. Const.Amend. 4; McKinney's CPL § 140.50(3).

This case was largely about the reasonableness of the search, and ultimately, and took a very interesting path to that end.

 

[mp510]

N.Y.Sup.,2007.
People v. Irizarry
Slip Copy, 17 Misc.3d 1118(A), 2007 WL 3086174 (Table) (N.Y.Sup.), 2007 N.Y. Slip Op. 52051(U)
Unreported Disposition

Another one from New York County:

Excerpt:

*3 A gravity knife, as defined by Penal Law § 265.00(5) “means 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.” The operability of the knife in this fashion is an essential element of criminal possession of a weapon in the fourth degree. People v. Perez, 123 A.D.2d 889 (2d Dept 1986), appeal denied 69 N.Y.2d 831 (1987).

The knife was produced at the hearing and was opened by both officers. Without being opened, there was nothing illegal in the pocket knife's outward appearance. It was a small, black folding knife. There were no allegations at the hearing that the officers thought it contained a blade of four inches or more, and it appeared to be less than four inches at the hearing. Furthermore, it had not been worn outside the defendant's clothing nor carried in open view. (Administrative Code § 10-333). The knife had simply fallen out of a pocket as a result of the officers lifting the defendant from the ground. Contrary to the People's contentions, while the officers referred to the knife as a gravity knife at the hearing, there was no testimony elicited that there was anything in the knife's physical appearance when it fell from the defendant's pocket to differentiate it from a legal pocket knife. The knife had a button on the blade to allow for manual opening. There are many legitimate reasons for a person to carry a small pocket knife and numerous citizens legally do so in the course of their occupations. Therefore, prior to the officer conducting the physical test on the knife, there was no evidence to support a reasonable belief the knife was a gravity knife. The officers testified that the defendant was cooperative, friendly and not aggressive. Thus, they had no reason to fear for their safety and neither officer testified to any fear of the defendant.Therefore I find the police officers did not have the right to seize this pocket knife which has no outward indicia of illegality and, rather than return it to the defendant and let him proceed on his way as he wished to do, retain it in order to test it to see if it might be an illegal gravity knife when opened in a particular manner.

Accordingly, defendant's Dunaway/Mapp motion to suppress the gravity knife is granted. The switchblade knife is suppressed as the fruit of an unauthorized search conducted upon the defendant's person after the illegal arrest.

Defendant's statements, made pre-arrest in the course of the accident investigation, were legally obtained and defendant's Huntley motion is denied.

This constitutes the decision and order of the court.

This one is not in the published volume, but will appear in the Reporter Table.

 

[mp510]

In re Percell McK.
30 A.D.3d 1128, 819 N.Y.S.2d 1
N.Y.A.D. 1 Dept.,2006.
June 06, 2006

From Bronx County

Various excerpts:

Holding: The Supreme Court, Appellate Division held that since knife in question was not a gravity knife or switchblade, juvenile could not have been charged with criminal possession of a weapon in the fourth degree.
Affirmed as modified.

This case is important, even though it really doesn't talk about gravity knives, because it affirms that a juvenile can't be adjudicated delinquent for criminal posession of a weapon for a knife that is not a defined prohibited weapons (ie. gravity knife or switch blade).

 

[mp510]

Basically, I went back 3 years, for the entire state of New York. I got 17 total hits. In 2, there was no actual (or alleged) gravity knife present, including one of the cases I excerpted from. The term was used in statuatory reference or in some other example in those cases. In 4 other cases, gravity knives were present, but issues were entirely based around other matters (ie. judicial process, unlawful search, unlawful arrest, etc...).

I did copy and paste what I felt was most relevant.

Counties outside of those that comprise NYC, where I noticed appeals cases for somebody charged with weapons posession for carrying a gravity knife, among those results, included Broome and Nassau.

 

[tom19176]

mp510, very interesting update, Thanks ! It seems that most of these cases are all still Fourth Amendment issues and not much on the real "what is a gravity knife" issue that we are looking for here. Could you let me know what the Nassau County cases were about? They seem to be far more lax in Nassau and even more so in Suffolk. I ask because the NYC all inclusive gravity knife definition is spreading here mostly because a large number of newer Nassau Officer are trans plants from the NYC force who were on the waiting list for Nassau, but took the job in the city till Nassau called them.
I worked for the city in the 1980s and there were no arrest for possession of a gravity knife alone back then. It has gotten far out of hand now but I don't really see any stopping it as they are viewed as weapons and fit the description in the PL that was written to define true gravity knives. I remember Bernard Levine had once stated the word " released" from the handle indicated the need to press a button or lever to release the blade prior to gravity or inertia coming into play, but this does not seem to have ever been an issue.

There have been far too many arrest upheld by the courts in this area so I don't think any change in interpertation will be forth coming from the courts. I always fear that any attempt to change the law will result in a more restrictive law be passed. The only good change in the law was the one that took place last month that allowed for the possession by museums of "automatic" knife and a new definition was added of "automatic" knives.

Please post the Nassau County cases if you can or if they have any meaningfullness....Thanks...Tom

 

[dd61999]

Tom

If you live in Nassau most libraries have westlaw so you can go there and print out the cases. Westlaw also shows cross references to other law materials for further research.

 

[dd61999]

mp510

thanks for the posts, greatly appreciated.

 

[dd61999]

So it looks like the gravity knife claim is being upheld in the courts. I now have to find a knife I can open one handed but cannot be fliked open by holding the blade

 

[mp510]

So it looks like the gravity knife claim is being upheld in the courts. I now have to find a knife I can open one handed but cannot be fliked open by holding the blade

Look into a Spyderco UK penknife. It's a sub-3" Spyderco, complete with opening hole, that lacks a blade lock. Istead, it uses a heavy heavy backspring (like a traditional knif)

 

[mp510]

mp510, very interesting update, Thanks ! It seems that most of these cases are all still Fourth Amendment issues and not much on the real "what is a gravity knife" issue that we are looking for here. Could you let me know what the Nassau County cases were about?

Right, the search/siexure issue seemed to be more of an issue than the "what is a gravity knife issue", but a lot of people are being collared based some NYPD tacgtics that more than a few folks question.

I'm going to dig up the Nassau County case shortly.

 

[dd61999]

Look into a Spyderco UK penknife. It's a sub-3" Spyderco, complete with opening hole, that lacks a blade lock. Istead, it uses a heavy heavy backspring (like a traditional knif)

That is exactly the knife I was looking at, however after looking at the loose interpretation of the law I am worried that it would still be considered a gravity knife by saying the backspring is a locking device. I know that sounds crazy but so is how an average knife held by the blade and flicked open is considered a gravity knife.

 

[mp510]

The most recent Nassau County case dealt with sufficiency of evidence issues. Unfortunately, I could not find the petitioners brief, so I have no idea what evidence McAllister was attempting to claim insufficient.

People v. McAllister,
47 A.D.3d 731, 850 N.Y.S.2d 495, 2008 N.Y. Slip Op. 00288, N.Y.A.D. 2 Dept., January 15, 2008 (NO. 2006-08634, 2790/05)

Evidence that defendant possessed a gravity knife was sufficient to support conviction for third-degree criminal possession of a weapon. McKinney's Penal Law § 265.02(1).

I found a second Nassau County case involving a Criminal Possession of a Weapon 3d. arrest, however, the appellee made no attempt to claim that the knife was anything other than a gravity knife. Rather, he actually conceded as a statement of fact that he possessed the 21 bags of marijuana and the "black handled gravity knife". His appeal was on the grounds that 1. The Officer coerced his confession to marijuana possession, which lead to the arrest; and that the officer confronting him was unnecessary intrusion- since he was not engaged in any other illegal behavior, had not violated any traffic laws, that no evidence of burning marijuana which prompted the questioning was recovered, and that his shuffling items (to hide evidence) when encountered by the police was normal and not suspicious activity. The case was ruled ruled in the petitioners favor, largely on unnecesary intrusion grounds. That case cite is:

People v. Powell
16 Misc.3d 1115(A), 847 N.Y.S.2d 898 (Table)
N.Y.Dist.Ct.,2007.
June 19, 2007

 

[mp510]

That is exactly the knife I was looking at, however after looking at the loose interpretation of the law I am worried that it would still be considered a gravity knife by saying the backspring is a locking device. I know that sounds crazy but so is how an average knife held by the blade and flicked open is considered a gravity knife.

I see where you are comeing from with that comment. However, I have also found that oftentimes, backsprings usually help keep the blades in the closed position as well. There is a pass around of the spyderco denmark pen knife going on here, and I am schedueled to recieve it soon (hopefully). When I recieve it, I'll put together a flick test video for it. The denmark pen knife is the same as the uk pen knife, except that it effectively lacks an opening hole and instead has an opening indent, with a small hole.

When I travel into NYC (I live in CT) I won't even carry even an Opinel, because it can easily be flicked open (most months of the year), and has a lock- though the lock must be manually engaged. It could easily be the target of an overzealous prosecution. Instead, I'll carry SAK's, traditional slipjoints, and other knives that could in no way be construed as a gravity knife.

 

[dd61999]

Thanks, I will look forward to that video

 

[tom19176]

mp510, thanks for the Nassau update. NYC has gotten far too over board lately with the level of enforcement, but a large part to blame is 40,000 officers ( say 32,000 POs the rest sgt and up) and they are all required to make an arrest a month, and give out a book of tickets ( 25)......that leads to everything being illegal that can be....

 

[tom19176]

dd61999 I will look at the Nassau library, Thanks !

 

[mp510]

Thanks, I will look forward to that video

DD61999, I decided not to put together a flick video for the DKPK. As soon as I recieved it, I did flick test it, and it opened with ease (hold blade, open handle). However, there is no way that it could be described as a lock knife. While it makes a nice snaps, it is mechanically no different (and the backsprings are no heavier) than any other traditional slipjoint pocket knife. I would not worry about any legality problems carrying it concealed in NYC