The opinion of the court was delivered by: Robert M. Mandelbaum, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Does defendant's explanation that he was carrying a knife for protection immunize him from a charge of possession of a weapon with intent to use unlawfully?
Penal Law article 265 reflects a legislative determination that public safety is best preserved when the state's citizens are forbidden from roaming the streets equipped with tools of violence. Thus, the weapons statutes proscribe two broad categories of implements whose possession is made criminal. First are those items, such as firearms, gravity knives, switchblades and blackjacks, whose very character "make[s] it evident that the [L]egislature [was] entirely justified in regarding them as dangerous and foul weapons seldom used for justifiable purposes but ordinarily the effective and illegitimate implements of thugs and brutes in carrying out their unlawful purposes" (People v Persce, 204 NY 397, 402 ). In enacting Penal Law § 265.01 (1), which bans certain enumerated objects, the Legislature sought to make possession of such per se weapons "of itself criminal without delaying until opportunity had bred and perhaps permitted the accomplishment of some particular evil design" (Persce, 204 NY at 403). In an effort to keep up with the technological advances of hoods and brigands, the statute has been frequently amended to include newfangled weaponry whose mere possession poses a threat to the public peace (see e.g. L 1986; ch 328 [pilum ballistic knives]; L 1988, ch 220 ["Kung Fu stars"]; L 1990, ch 264 [electronic stun guns]).
Second, as to items possessed of legitimate purpose, criminal liability may be imposed only when a defendant intends to use the object unlawfully against another (see Penal Law § 265.01 ; see also Penal Law § 265.02 ). And, indeed, when an otherwise-lawful instrument is wielded with criminal intent, nearly any item can become a prohibited weapon (see e.g. People v Cwikla, 46 NY2d 434, 442  [handkerchief]; Matter of Marvin D., 208 AD2d 360 [1st Dept 1994] [lit cigarette]). For, in that circumstance, "[i]t is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute" (People v Carter, 53 NY2d 113, 116 ; see also Penal Law § 10.00  [defining "dangerous instrument" as "any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury"]).
Common to both categories is the item's classification as a weapon - either in its essential character or because of the circumstances of its use.
Charged by superseding information with criminal possession of a weapon in the fourth degree, harassment in the second degree, and disorderly conduct, defendant moves to dismiss for facial insufficiency. As alleged in the information, defendant repeatedly approached and pestered a passerby to purchase a "SpongeBob" balloon. Each time the prospective buyer, accompanied by two young children, declined defendant's offer and tried to walk around him, defendant stepped in front of the customer, as if attempting to block her path, while ultimately insisting, "Buy it for your kids!" According to the arresting officer, who witnessed the entire encounter, defendant was noticeably intoxicated. In defendant's back pocket was found an unsheathed and unwrapped knife with a blade of approximately three inches. Defendant professed, "That's for my protection. I need it because of drug dealers. I make $500 a week and drug dealers are out to get me."
"A person is guilty of criminal possession of a weapon in the fourth degree when . . . [h]e possesses any dagger, dangerous knife, dirk, razor, stiletto . . . or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another" (Penal Law § 265.01 ). Because defendant's knife is neither a per se weapon under Penal Law § 265.01 (1), nor a dagger, dirk,*fn1 razor or stiletto, in order for the information to make out a sufficient charge of criminal possession of a weapon premised on possession of a knife, the allegations here must establish that defendant possessed a "dangerous knife" with intent to use it unlawfully against another.*fn2
A "dangerous knife" is "a knife which may be characterized as a weapon" (Matter of Jamie D., 59 NY2d 589, 592 ). A "weapon," in turn, is "an instrument of offensive or defensive combat" (id. [citation and internal quotation marks omitted]). Thus, although some knives may satisfy the test of dangerousness by virtue of their "inherent characteristics," a knife not necessarily designed for combative use "may nonetheless be determined to fall within the statutory prescription when the circumstances of its possession including the behavior of its possessor demonstrate that the possessor himself considered it a weapon" (id. at 591; see also Matter of Sean R., 33 AD3d 925, 926 [2d Dept 2006]). Accordingly, a knife "designed and primarily intended for use as [a] utilitarian utensil" will be deemed dangerous within the meaning of the statute when either it has been converted by physical modification into a weapon or the circumstances of its possession "may permit a finding that on the occasion of its possession it was essentially a weapon rather than a utensil" (Jamie D., 59 NY2d at 593).
Here, defendant's declaration plainly evidences that defendant "himself considered" the knife to be "an instrument of offensive or defensive combat," and therefore a weapon (id. at 591, 592; see also Matter of Carlos M., 32 AD3d 686, 686 [1st Dept 2006]). The statement, "That's for my protection," in effect conflates two distinct assertions - one incriminating, the other potentially exculpatory: "If I use this knife it will be to stab (or menace) someone, but I will be justified in doing so" (cf. People v Kuyal, 225 AD2d 1092, 1092 [4th Dept 1996] ["Defendant testified that he used the knife to defend himself, in order to scare' the person that was charging' at him. Thus, defendant used the knife as a weapon"]). Moreover, the manner in which the knife was stowed, unsheathed in his pocket and without wrapping around the blade, further manifests defendant's subjective belief (cf. Matter of Patrick L. (244 AD2d 244, 246 [1st Dept 1997] ["it is unlikely that (the defendant) would carry a single unpackaged (razor) blade in his wallet if he ...