Defendant appeals from a judgment of the Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 25, 2006, convicting him, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him as a second felony offender.
The opinion of the court was delivered by: Gonzalez, J.P.
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 Official Reports.
Luis A. Gonzalez, J.P., John T. Buckley, Karla Moskowitz, Dianne T. Renwick and Leland G. DeGrasse, JJ.
In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter (Penal Law §§ 265.02, 265.01), must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon? Or, as the People here argue, is it sufficient to prove that the defendant knew he or she possessed an object that met the statutory definition of a switchblade? Although the statute includes no express element of mental culpability and the offense has often been referred to as a crime of "strict liability," existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon. Because the trial court in this case refused to adequately charge the jury on this element of knowing possession, defendant's conviction must be reversed and a new trial ordered.
The facts underlying defendant's conviction are briefly stated. Defendant and an accomplice were arrested for the commission of a robbery. During a search of defendant's person, the police recovered a combination switchblade knife and cigarette lighter. After defendant and his accomplice were tried and acquitted of the robbery charge, defendant was tried for criminal possession of a weapon in the third degree for unlawfully possessing the switchblade knife.
At the close of the prosecution's case, defendant moved for a trial order of dismissal on the ground that the People failed to introduce any evidence that he knowingly possessed a switchblade, because there was no evidence that he knew the object's character as a weapon. The court reserved decision on the motion. During the subsequent charge conference, defense counsel requested that the jury be instructed that, in order to convict, it must find that defendant knew the object he possessed had the characteristics of a weapon and was not merely a lighter. The court denied the request to charge, stating that Penal Law § 265.01(1) was a strict liability statute, listing the switchblade knife as a "per se weapon," citing People v Davis (112 Misc 2d 138 [Crim Ct, Bronx County 1981] [Friedmann, J.]).
In his summation, defense counsel argued to the jury that there was no evidence that defendant used, or intended to use, the object as a knife. The prosecutor argued that the evidence showed that defendant knowingly possessed a switchblade, and, more specifically, that defendant knew that the object was a knife as well as a lighter. After summations, the trial court informed the parties that notwithstanding the prosecutor's argument that defendant's possession was knowing, it intended to charge the jury that there was "no knowledge requirement." In fact, the court charged the jury that the crime had two elements: 1) that the weapon was possessed by defendant, and 2) that it was in fact a switchblade. With respect to defendant's knowledge, the court instructed:
"I also said that there are some things that by its nature do not require any mental element. One of them is something called a switchblade. The elements that you have to decide are: Did he have it? Is it a switchblade? Each of those things has to be proven beyond a reasonable doubt. Of course he had to know that he had the item but there is no requirement that he knew its precise nature."
Defense counsel objected to the court's charge, and further objected to the court's comparison of the switchblade/lighter to a cane sword, another per se weapon prohibited by Penal Law § 265.01(1). Notably, the prosecutor also asked the court to clarify its charge by adding the requirement of "knowing possession," to which the court responded, "C.J.I. is not Court of Appeals."*fn1 The trial court ultimately overruled both objections, and defendant was found guilty of third-degree weapon possession.
On appeal, defendant argues that the court's refusal to charge that Penal Law § 265.01(1) requires proof that he knew the object he possessed was a weapon, and not simply a lighter, deprived him of due process of law. We agree.
Penal Law § 265.01(1) provides that "a person is guilty of criminal possession of a weapon in the fourth degree when ... [h]e possesses ... [a] ... switchblade knife ..." The charge is elevated to third-degree possession where, as here, the defendant "has been previously convicted of any crime" (Penal Law § 265.02). Penal Law § 265.00(4) defines switchblade knife 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."
The parties disagree as to whether a defendant's knowledge that the object possessed was a weapon is an element of the crime that must be charged. The inquiry is complicated by the fact that this switchblade knife was disguised as a cigarette lighter. Defendant concedes that the statute does not expressly require proof of knowledge that a weapon was possessed. Nevertheless, he contends that controlling case law and Penal Law article 15 together require that the prosecution prove that the ...