People v Fana

[*1] People v Fana 2009 NY Slip Op 50772(U) [23 Misc 3d 1114(A)] Decided on April 23, 2009 Criminal Court, New York County Koenderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 23, 2009
Criminal Court, New York County

The People of the State of New York

against

Miguel A. Fana, Defendant.



2008NY086726



For defendant:

Steven Banks; Geoffrey Bickford

The Legal Aid Society

49 Thomas Street

New York, New York 10013

For People:

Matthew Montana

Assistant District Attorney

New York County

One Hogan Place

New York, New York 10013

Elisa S. Koenderman, J.

The defendant Miguel Fana is charged with Criminal Possession of a Weapon in the Fourth Degree (Penal Law ["PL"] § 265.01[1]) and Unlawful Possession of Marihuana (PL § 221.05). The defendant has moved in an omnibus motion for dismissal of the charge of Criminal Possession of a Weapon in the Fourth Degree for statutory unconstitutionality and vagueness; suppression of identification and physical evidence; preclusion of statement and identification evidence; and preclusion of prior bad acts. The defendant's motion is decided as follows.

CONSTITUTIONALITY OF PENAL LAW § 265.01(1)

Defendant claims that Penal Law § 265.01(1), Criminal Possession of a Weapon in the Fourth Degree, is unconstitutionally vague and overbroad as applied to him because it lacks an explicit mens rea requirement, includes commonly and innocently used utility tools and permits arbitrary law enforcement. Thus, he contends that the charge against him must be dismissed. To the contrary, "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. Finally, the statute does not permit arbitrary law enforcement"(People v [*2]Voltaire, 18 Misc 3d 408, 413 [2007]). Accordingly, defendant's motion is denied.

A legislative enactment carries a strong presumption of constitutionality. Therefore, in seeking to invalidate Penal Law § 265.01(1) the defendant bears the heavy burden of demonstrating that the statute is unconstitutional beyond a reasonable doubt (see People v Scalza, 76 NY2d 604, 607 [1990]; People v Bright, 71 NY2d 376, 382 [1988]; Voltaire, 18 Misc 3d at 409; see also People v Stuart, 100 NY2d 412, 422 [2003]; People v Scott, 26 NY2d 286, 291 [1970]). Where a defendant challenges a statute as being unconstitutionally vague as applied to him, the court must consider whether the statute can be constitutionally applied to the defendant under the particular facts of the case (see Stuart, 100 NY2d at 421). If the statute provides the defendant with adequate notice and the police with clear criteria, the inquiry is ended (id. at 422). If a defendant makes an as-applied vagueness challenge and the court repudiates it, the facial validity of the statute is confirmed (id.).

To address a challenge for vagueness, the court must employ a two-pronged analysis (see Stuart,100 NY2d at 420; Bright, 71 NY2d at 382). First, the court must determine whether the statute is "sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute'" (Stuart,100 NY2d at 420, quoting People v Nelson, 69 NY2d 302, 307 [1987]). Next, the court must ascertain whether the statute provides officials with clear standards for enforcement (id.). This second aspect is the more important part of the two-pronged test for vagueness (see Stuart, 100 NY2d at 421-422; Bright, 71 NY2d at 383). "If a statute is so vague that a potential offender cannot tell what conduct is against the law, neither can a police officer"(Stuart, 100 NY2d at 420-421). The absence of objective standards to guide the police permits them to make arrests based upon their own personal, subjective idea of right and wrong and allows for arbitrary and discriminatory enforcement by conferring upon the police unfettered discretion and the virtually unrestrained power to make arrests (see Bright, 71 NY2d at 382; Stuart 100 NY2d at 421-422).

Penal Law § 265.01(1) provides that "a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade 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" (emphasis added).

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]). 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 AD2d 773, 774 [2d Dept 2003]). Moreover, in order to sustain a conviction under Penal Law § 265.01(1), the gravity knife must be operable (People v Smith, 309 AD2d 608, 609 [1st Dept 2003]).

For a defendant to be guilty of criminal possession of a weapon under Penal Law § 265.01(1), the possession of the weapon must be both knowing and voluntary (People v Persce, 204 NY 397, 402 [1912]; People v Wood, 58 AD3d 242, 246 [2008]; People v Visarities, 220 App Div 657, 658 [1st Dept 1927]). Where the weapon possessed has an inherently dangerous nature which is readily apparent, the People need only prove that the defendant knew that he possessed the weapon, and not that he knew that it met the statutory definition of the prohibited object (see Wood, 58 AD2d at 249; [*3]People v Berrier, 223 AD2d 456, 457 [1st Dept 1996]; Voltaire, 18 Misc 3d at 411). Thus the People must prove that a defendant charged with possession of a gravity knife knew that he had a knife, but not that he knew that it met the statutory definition of a gravity knife (see Berrier, 223 AD2d at 457; People v Best, 57 AD3d 279, 280 [2008]; Voltaire, 18 Misc 3d at 411). The rationale underlying this strict liability is that a person who possesses an object which is obviously and inherently dangerous is on notice that the object is potentially subject to government regulation and bears the burden of determining, "at [his] own peril," whether the object is prohibited by law (Wood, 869 NY2dat 408).

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 (Persce, 204 NY at 401-402). In order for a so-called strict liability crime to withstand constitutional scrutiny, however, "there must be some reasonable relationship between the public safety, health, morals or welfare and the act prohibited" (People v Munoz, 9 NY2d 51, 58 [1961]; see also Staples v United States, 511 US 600, 607 n 3 [1994]). In Munoz, the Court of Appeals invalidated a statute which criminalized the possession of "any knife or sharp pointed or edged instrument which may be used for cutting or puncturing" by any person under the age of twenty-one (id. at 54-55). Although the Court recognized that the statute was "designed to meet a limited though serious evil" it found the statute "too vague and too general" to be reasonably related to public safety since it failed to exclude "the most commonly used and innocently possessed devices of everyday life," such as "safety razors, nail files and other potentially dangerous toilet articles" (id. at 57).

The gravity knife was designed for use by German military paratroopers during World War II to enable them to cut their parachutes with one hand (see United States v Irizarry, 509 FSupp2d 198, 204 [2007]). The blade of a gravity knife is contained within the handle of the knife. When a small lever on the handle is depressed and the force of gravity or centrifugal force is applied, the blade of a gravity knife is released from the handle of the knife and locks into an open position (American Knife and Tool Institute, AKTI Approved Knife Definitions, Vol. 7, Issue 2, 2005, available at www.akti.org/PDFS/AKTIDefinitions.pdf). The characteristics of a gravity knife render it both easily concealed on the person and quickly deployed as a weapon. In this regard, the gravity knife is comparable to the switchblade knife (see Irizarry, 509 FSupp2d at 206-207). A switchblade knife is defined under Penal Law § 265.00[4] as "any knife which has a blade which opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife." In 1954, the New York State legislature banned the possession of a switchblade knife because of its frequent use by teenagers in committing violent crimes (see id. at 206-207, citing New York State Legislative Annual, p. 385 [1985]). In 1958, for similar reasons, the legislature criminalized the possession of a gravity knife (id. at 207, citing Proceedings of the Council of the City of New York, Vol. 1, Res. No. 8 [Feb. 18, 1958]). Hence, a gravity knife is per se unlawful to possess because it can seldom be used for any legitimate purpose (see People v Talbert, 107 AD2d 842, 843 [3d Dept 1985]).

Defendant nevertheless contends that his knowing and voluntary possession of the alleged gravity knife in question is insufficient to establish the requisite mens rea for commission of the crime because "the dangerous element of a gravity knife is concealed by the common and appropriate use of the knife as a construction and utility tool." He continues that some folding knives, in particular the "Husky Folding Lock-Back Utility Knife" described by the court in Irizarry, [*4]supra , which is sold in local stores such as the Home Depot, meet the statutory definition of a gravity knife and yet are widely used as tools. Defendant does not contest, however, that such knives are swiftly and suddenly capable of causing serious injury or death. He simply argues that because many people use such knives for non-criminal purposes, the statute prohibiting their possession is unconstitutionally vague.

The fact that some knives which meet the statutory definition of a gravity knife are sold in local stores as "folding knives" which are designed and intended for use as tools does not render the statute unconstitutionally vague. Indeed, when initially introduced during World War II, the gravity knife was intended for use by paratroopers as a tool for cutting their parachutes with one hand (see Irizarry, 509 FSupp2dat 204). The gravity knife's intended function as a tool did not then, and does not now, alter its obvious and inherently dangerous nature. The intended use or design of the knife by its manufacturer is not an element of the crime and is irrelevant to the issue of whether the knife is a gravity knife (but see id. at 210). The statute provides a clear and specific definition of a gravity knife (Penal Law § 265.00[5]). Only a defendant who knowingly and voluntarily possesses a knife which meets this statutory definition may be convicted of Criminal Possession of a Weapon in the Fourth Degree under Penal Law § 265.05(1) for possession of a gravity knife. Simply because the statute reaches many defendants who claim to possess such knives for legitimate purposes [FN1], and is therefore broad in scope, does not make the statute "overly broad"[FN2].

Moreover, the statute provides police with clear standards for enforcement and is a valid use of the state's police power (see Munoz, 9 NY2d at 60). Unlike the statute held unconstitutional and void for vagueness in Munoz, supra , Penal Law § 265.01(1) does not "enable prosecution of those whom the police believe to be bad boys or girls" by permitting the police to arrest them for possession of "penknives, knitting needles, fountain pens and the like" (id. at 58, 60). Rather, Penal Law § 265.01(1) authorizes police to arrest a person where they have probable cause to believe that he knowingly and voluntarily possesses a knife which meets the specific statutory definition of a gravity knife. Indeed, if the police consistently arrest individuals for possession of knives which meet this statutory definition regardless of their intended use or design, then this demonstrates the lack of arbitrary and discriminatory enforcement of the statute.

In any event, the appropriate remedy to limit the scope of the statute is not to declare it void for vagueness but through legislative amendment (see e.g., People v Goodwin, 870 NYS2d 224, 227 [*5][2008]).

Finally, in the instant case, whether the defendant, beyond a reasonable doubt, knowingly and voluntarily possessed a knife which meets the statutory definition of a gravity knife is a question for the finder of fact at trial (see Voltaire, 18 Misc 3d at 412).

In conclusion, because the statute is constitutional as applied to the defendant, his motion to dismiss the charge of Criminal Possession of a Weapon in the Fourth Degree against him is denied.

REMAINING MOTIONS

A Mapp/Dunaway hearing is ordered on defendant's motions to suppress physical evidence. A Wade/Dunaway hearing is ordered on defendant's motions to suppress testimony regarding identifications made of the defendant. Defendant's motion to preclude statements or identification evidence for which the People have not given proper notice is denied at this time with leave to renew should the People seek to introduce any such evidence. The People are directed to disclose the defendant's prior bad acts immediately prior to the commencement of jury selection in compliance with Criminal Procedure Law § 240.43 and the defendant's application for preclusion of same is reserved to the trial court.

This opinion constitutes the decision and order of the Court.

Dated:New York, NY

April 23, 2009

___________________________

Hon. Elisa S. Koenderman, JCC Footnotes

Footnote 1: Notably, when possession of a switchblade knife was criminalized in 1954, the statute contained an exception for switchblade knives which were used for business, trade or professional purposes, or which were used for hunting, trapping or fishing with a license. In 1956, because of the continued hazard presented by switchblade knives, and because the exception virtually vitiated successful enforcement of the statute, the exception was repealed (Irizarry, 509 FSupp2d at 206, citing New York State Legislative Annual, p. 21 [1956]).

Footnote 2: A constitutional challenge for overbreadth is appropriately raised where a statute covers a substantial amount of conduct protected by the First Amendment (see Stuart, 100 NY2d at 422, n 8, citing New York v Ferber, 458 US 747, 768-770 [1982]; Broadrick v Oklahoma, 413 US 601, 612 [1973]; see also Schulman v New York City Health & Hospital Corp., 38 NY2d 234, 242 [1975] ["there is no authority for extending this doctrine of facial overbreadth beyond the reach of the First Amendment"]). The defendant has no First Amendment right to carry a knife and thus the overbreadth doctrine does not apply to this case.