AT2 order dated August 30, 2013, affirming judgment of conviction. Decision below: 40 Misc.3d 141(A), 977 NYS2d 669, 2013 WL 4766514. Read, J., granted leave July 8, 2014. Argued September 16, 2015.

ISSUE PRESENTED: The factual sufficiency of the allegations in the misdemeanor complaint charging fourth-degree criminal possession of a weapon based upon possession of a gravity knife, in that there was no allegation that the blade was “released from the handle or sheath” or that it locked into place “by means of a button, spring, lever or other device.”. (Assigned counsel: Seymour James, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

Background Facts: Mr. Sans was charged with fourth-degree weapon possession for possessing a gravity knife. In the factual portion of the misdemeanor complaint, the swearing officer alleged that he “tested the above-referenced knife and determined that it was a gravity knife, in that it opens with centrifugal force and locks automatically in place.” 

 

Issue: Whether an accusatory instrument charging an individual with possession of a gravity knife was jurisdictionally defective for not (a) stating non-conclusory allegations that it opened by centrifugal force, (b) alleging that the blade “locked into place by means of a button, spring, lever or other device” under Penal Law § 265.00, and (c) furnishing the officer’s professional basis for drawing the conclusion that the knife was, in fact, a gravity knife.

 

Held: The Court unanimously affirmed the Appellate Term’s finding that the accusatory instrument had been sufficiently specific, reasoning that “automatically” locking is equivalent to locking by an enumerated means specified in the statute proscribing a gravity knife’s possession. It also narrowed People v. Dreyden’s mandate that “[a]n arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant’s possession was a gravity knife,” finding that the focus was on the officer’s basis rather than these magic words.

 

CAL Observes: In contrast to how the Court treated the factual allegations in Afilal, another recent decision, here it declined to find the accusatory instrument deficient. Squaring the two cases is in some respects difficult, as here resort to outside information would be necessary to determine how exactly the officer “tested” the knife and drew his conclusion, yet the Court found it non-conclusory. (Further, given that New York’s gravity knife statute has received criticism for encompassing knives that can be opened by centrifugal force even if they are not designed to open in such a manner, see U.S. v. Irizarry, 509 F.Supp.2d 198 (E.D.N.Y. 2007), there is even more reason to find that simply alleging centrifugal force may not be enough.) As for People v. Dreyden, this case seems to call into question whether its direction regarding pleading “training and experience” is mandatory or just something that must be demonstrated functionally.