Senate Bill S5650

                                BILL NUMBER:S5650

TITLE OF BILL:  An act to amend the penal law, in relation to an
affirmative defense to criminal possession of a gravity knife

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

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.