New York Knife Laws

At a Glance:

New York State law regarding the possession of knives is amorphous and confusing. Any knife can become a ‘dangerous knife’ and create the risk of a criminal conviction even in the absence of criminal conduct on the part of the possessor. The scope of the ‘dangerous knife’ problem only becomes evident upon examination of all relevant portions of the NY Penal code § 265 (Firearms and Other Dangerous Weapons), along with related court cases.

Warning Regarding New York Amendment Effective November 1, 2019

Relevant Statutes:

N.Y. Penal Law § 265.00.  Definitions
N.Y. Penal Law § 265.01.  Criminal Possession of a Weapon in the Fourth Degree
N.Y. Penal Law § 265.02.  Criminal Possession of a Weapon in the Third Degree
N.Y. Penal Law § 265.01-A. Criminal Possession of a Weapon on School Grounds
N.Y. Penal Law § 265.05.  Unlawful Possession of Weapons by Persons Under Sixteen
N.Y. Penal Law § 265.06.  Unlawful Possession of a Weapon on School Grounds
N.Y. Penal Law § 265.10.  Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances
N.Y. Penal Law §265.15.  Presumptions of possession, unlawful intent and defacement
N.Y. Penal Law §265.20.  Exemptions

Restricted Knives: 

Possession of switchblades, ballistic knives, metal knuckle knives, and cane swords is prohibited, although there is a hunting and fishing exemption for switchblades. Gravity knives were removed from this prohibited category effective May 30, 2019, due in part to the efforts of AKTI.  A decision by the New York Court of Appeals in 2018 provides that an assisted opening knife may be considered a ‘switchblade’.

Possession of a dagger, dirk, stiletto, machete, dangerous knife, or razor by anyone having intent to use same unlawfully against another, or by anyone previously convicted of any crime, is also prohibited.

Concealed Carry:

New York State law does not distinguish between open or concealed carry, but visibility is a factor in some city ordinances.  See discussion below.

Restrictions on Sale or Transfer:

It is unlawful to ‘dispose of’ (gift, loan, sell, transfer) any switchblade, ballistic knife, metal knuckle knife or cane sword. (§ 265.10). This section also prohibits the production or manufacturing of any of the listed knives.

Restrictions on Carry in Specific Locations/Circumstances:

It is impractical to create an exhaustive list of all locations and circumstances where a given knife may not be legal. Unexpectedly knives are not included in sections 265.01-A and 265.06 which pertain to unlawful weapons on school grounds. However, New York State code provisions require all schools to develop codes of conduct applicable to students, teachers, and visitors regarding weapons. Knives should not be carried on school property or school buses. There are also knife/weapon limitations and prohibitions for court facilities, correctional facilities, and some airports.

Within the New York City Metropolitan Area, there is very heavy reliance on public transportation. For many citizens, there may be no other options. A code provision provides that weapons or dangerous instruments may not be carried in, or on, any conveyance or facility of the NYC Transit Authority. Weapons and dangerous instruments include, but are not limited to switchblades, boxcutters, straight razors or razor blades, gravity knives and swords. (21 NYCRR 1050.8). Essentially, there is a mass transit knife limitation in a metropolitan area where people must use monopolized mass transit.

Statewide Preemption:

No.

Major New York Cities with Knife Restrictive Ordinances:

Albany – None noted.

Buffalo – § 180-7, Prohibits open carry or display of weapons including knives on city-owned property.

New York City –  Administrative Code § 10-133, knives must be concealed and any blade must be less than 4 inches. Also note the Transit Authority Code mentioned above.

Rochester –  § 47-2, Prohibits carry of pointed instruments other than a pocketknife with no blade more than 3 inches in length.

Syracuse –  § 16-12, Prohibits carry of among other things any dirk, bowie knife, sword, razor or “any weapon, instrument or thing likely to produce grievous bodily harm.” (It is also unlawful to fling or throw any snowball with the city limits of Syracuse, NY, a city with an average annual snowfall of 123.8 inches per year). (See § 16-13).

Discussion:

Assisted Opening

New York law defines ‘switchblade knife’ as follows:

“Switchblade knife” means 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. (§ 265.00)

In the case of People v Berrezueta 31 N.Y.3d 1091 (2018), a knife described as having ‘a spring-loaded portion of the blade of the knife protruding from the handle of the knife’ was observed in the pocket of the defendant who was convicted of possessing a ‘switchblade’ pursuant § 265.01(1). The knife was opened by pressing on the protrusion of the blade. There was no button or other device in the handle that would cause the knife to open automatically. The conviction was upheld on appeal to the New York Court of Appeals which is the highest court in that state.

People in the ‘knife community’ would refer to the knife in question as an assisted opener. Knives of this type have been available in New York State for over a decade, but the state has not adopted the ‘bias toward closure’ exception which was the essence of the 2009 Amendment to the Federal Switchblade Act. Federal law does not preempt the NY Penal Code. The Berrezueta case suggests that assisted opening knives should be avoided in New York.

Dangerous Knife

The language of § 265.01(2) prohibits the possession of any:

dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument with intent to use the same unlawfully against another.

The NY Penal Code does not provide definitions for any of the items specified in § 265.01(2). A principle of statutory interpretation provides that where several specific items are mentioned – – in this case dagger, dirk, stiletto, machete, – – a general term such as ‘dangerous knife’ should apply to the same kind of things /items as specifically mentioned. Lawyers and judges refer to this principle as Ejusdem generus. The same concept is used to inspire reasoning among young children by educational TV programs such as Sesame Street through the visual exercise of ‘one of these things is not like the others.’

The case of Matter of Jamie D., 59 N. Y. 2d 589 (1983), involved a person under the age of 16 who was observed threatening another juvenile, and then an adult with a gun:

At the fact-finding hearing evidence was introduced that on January 31, 1980 [defendant], then under 16 years of age, and another youth were observed with guns attempting to rob a youngster and that when a passer-by went to the assistance of the youngster the two youths told him to get away or they would blow his head off. A police officer and a security officer from a nearby department store apprehended the two youths after a chase. When [defendant] placed his hand at his belt line one of the officers ordered him to remove his hand. When he refused to do so, after the other officer came to the assistance of the first, [defendant’s] resistance was overcome, his hand was removed, and a knife was revealed protruding from his belt. The knife was removed, and both youths were arrested.

While the above quote of the description of the circumstance suggests various offences involving the defendant’s conduct or actions, such as attempted robbery, he was charged with possession of a ‘dangerous knife’ under sections 265.01 and 265.05. The latter of the two sections specifically applies to persons under sixteen. Both sections charged address possession of a ‘dangerous knife’, which in this instance was a ‘steak knife’. Neither of the two sections charged include an element of conduct or action, meaning what, if anything, the possessor was doing with the knife.

At the juvenile proceeding in the Bronx Family Court, the § 265.01 charge was dismissed, but the defendant was found to have been in possession of a ‘dangerous knife’ in violation of § 265.05. He was declared to be a juvenile delinquent and placed on probation for one year.

He appealed to the New York Appellate Division, an intermediate level appeal court, which ruled that the steak knife was not a ‘dangerous knife’ ‘within the contemplation of the statute’.

The New York prosecution authorities were un-satisfied with such an outcome and took an appeal to New York Court of Appeals which is the highest court in that state.

The issue presented at the Court of Appeals was whether the steak knife was a ‘dangerous knife’ within the scope of § 265.05.

While both sections 265.01 and 265.05 prohibit the possession of a ‘dangerous knife’, there are some differences in the wording as between them. In § 265.01, the term ‘dangerous knife’ is in the same sentence along with dirk, dagger, stiletto, machete, and razor. In § 265.05, the only knife mentioned is ‘dangerous knife’.

A well-recognized principle of statutory interpretation is that related statutes should be read together. Sections 265.01 and 265.05 are both part of NY Penal Code § 265 (Firearms and Other Dangerous Weapons) and terms such a ‘dangerous knife’ would have the same meaning in both. In ‘legalese’ this is referred to as reading statutes in pari materia. Had this approach been followed, the court would have been required  to construe the meaning of ‘dangerous knife’ based on ejusdem generis principles, or practical reality that a steak knife is not in the same class with dirks, daggers, and stilettos’ as mentioned in § 265.01.  Rather, the court looked to a different portion of the NY Penal Code where it was able to find a definition of ‘dangerous instrument’ and stated:

The definition of a “dangerous instrument” found in subdivision 13 of section 10.00 of the Penal Law^* is not made explicitly applicable to the term “dangerous knife” in section 265.05. Nonetheless, the subdivision states a sound criminological principle, that criminal behavior may be determined from the particular manner and context of activity which might be wholly innocent in other circumstances. (Emphasis supplied)

Note that the New York high court was ostensibly seeking to understand the meaning of ‘dangerous knife’ within the ‘contemplation of the statute’. However, the focus was shifted to a determination of criminal behavior based on activity in dealing with a criminal charge based on mere possession. The defendant’s activity or behavior was not an element of the § 265.05 charge of criminal possession.  This appears to be a departure from sound legal principle.

The court then created a three-prong standard for application of the prohibited ‘dangerous knife’:

Firstly, it may be any knife which, by reason of its design or other characteristics, “is primarily intended for use as a weapon.” Secondly, it may be a common utilitarian utensil modified or “converted into a weapon.” Thirdly, it may be a common utilitarian knife unmodified or not designed as a weapon, but nevertheless deemed dangerous by reason of the circumstances of possession and/or the ‘context of activity’.

This holding has consistently been applied to both sections 265.01 and 265.05 with respect to the issue of what is a ‘dangerous knife’. The ‘circumstances’ prong seems to be the favorite of New York prosecutors.

A better understanding of the concept of ‘circumstances of possession’ as it applies to a knife may be achieved by looking at a how courts in another state construed a comparable possession law.

A Pennsylvania statute, 18 PA CSA § 908, provides that it is unlawful to possess, among other things, any ‘implement for the infliction of serious bodily injury which serves no common lawful purpose’.

In the Pennsylvania case of Commonwealth v Artis, 418 A2d 644 (1980), the defendant was arrested during a barroom disturbance, where he was observed standing in the middle of the floor and waving a folding knife with a 7-inch blade at other patrons. He was convicted of misdemeanor disorderly conduct, and for violating § 908 by his possession of an implement (the folding knife) which allegedly had no lawful purpose at the time and place in question.

Upon appeal, the § 908 conviction was vacated since, apart from the circumstances of the barroom disturbance, there was no evidence that the folding knife lacked a common lawful purpose. The prosecution had attempted to expand or re-write the statute.  Standing in a bar and waving a knife at other people does not make the knife unlawful. The problem, if one existed, was the person waving the knife.  The disorderly conduct conviction accordingly remained.

The glaring problem with the New York rule on ‘circumstances of possession’ as established in Matter of Jamie D. is that it mixes criminal possession with criminal activity. The result is a hybrid offense where a ‘common utilitarian knife unmodified or not designed as a weapon’ becomes a ‘dangerous knife’ in the complete absence of any use of said knife, by reason of the ‘circumstances’ which do not constitute a criminal offense.

This is not a theoretical problem. Criminal justice officials in New York City have initiated opportunistic ‘dangerous knife’ prosecutions for the mere possession of a pen knife or pocketknife.

In the November 2018 case of People v. Kitchens 2018 NY Slip Op 51835 the court dismissed a charge under § 265.01 (2) wherein the circumstances of possession were that the defendant had a ‘pen knife’ in his right front pocket:

In the accusatory instrument, Detective Daniel Wadolowski avers that at about 2:25 P.M. on August 14, 2018, in front of 250 West 135th Street, he “recovered a pen knife from the defendant’s front right pants pocket.”

‘Accusatory instrument’ in the above quote refers to the written statement of charges submitted by the Detective which stated nothing beyond that the defendant had ‘a pen knife in his right front pants pocket’. There was neither mention of circumstances, nor statement as to some ‘context of activity’ by which the defendant’s pen knife had transformed into a ‘dangerous knife’ while inside his pocket.

This New York City case was not an isolated instance of attempted legal sorcery by New York City criminal justice officials. The exact same charges had been attempted six months earlier in the May 2018 case of People v. Magnaye 2018 Slip Op 50694 in which the Court similarly dismissed a charge of Criminal Possession under § 265.01 where the circumstances of possession were no more remarkable than that the defendant had a pocketknife in his right front pocket:

So viewed, the information charging criminal possession of a weapon in the fourth degree . . . based on allegations that police recovered a “pocket knife” from defendant’s “right front pocket”, was jurisdictionally defective because it did not contain allegations which, if true, would have established that the knife defendant possessed was a “dangerous knife” . . .  The pleading lacked sufficient allegations regarding defendant’s behavior or the circumstances under which he possessed the “lawful” pocketknife. (Citations omitted)

Presumably, the New York City arresting officials in the Kitchens and Magnaye cases mentioned above would have noted any criminal circumstances when filing the charges. They had an incentive, if not a duty, to do so.  The absence of any description of criminality suggests misuse of the dubious ‘circumstances of possession’ approach by New York City criminal justice officials.  One such case may be happenstance. Two such cases, within a six-month period is evidence of a pattern.

For Protection

The Courts in New York, including New York City consistently allow prosecutions of dangerous knife convictions, without regard to the type of knife, where, within the ‘context of activity’, the defendant makes any indication at the time of arrest that the alleged dangerous knife is possessed ‘for protection’. People v. Richards, 869 N.Y.S. 2d 731, (2008). The circumstances in the Richards case were that the defendant was a casual street vendor seeking to interest a buyer to purchase a ‘Sponge Bob’ balloon. His persistence led to a police intervention wherein a knife with a 3-inch blade was discovered in his back pocket. The description of the knife did not place it in either category of knives restricted in New York.  He explained the purpose for his possession of the knife:

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.

The defendant did not display or brandish the knife, which had remained in his pocket. He was charged with criminal possession under § 265.01 and with ‘disorderly conduct’. The court, guided by the reasoning of the case of Matter of Jamie D, observed that a ‘dangerous knife’ is one that may be used as a weapon and since the defendant stated that it was for his ‘protection’  his purpose made it a weapon, and therefore a dangerous knife.

The disorderly conduct charge deriving from the circumstances was dismissed because in the view of the court “defendant’s actions posed no risk of public inconvenience, annoyance, or alarm’.

Gravity Knives

Since an otherwise legal knife may be classified as dangerous given the circumstances of possession, a ‘gravity knife’ could be the basis of criminal possession charge under § 265.01(2) despite that fact that it is no longer restricted under § 265.01(1).

Undetectable Knives

As of November 1, 2019, an amendment signed into law regarding ‘undetectable knives’, will become effective. The effect of the amendment is to:

1. Add a definition of ‘undetectable knife’ to § 265.00,
2. Include ‘undetectable knife’ to § 265.01(2) which also contains the ‘dangerous knife’ prohibition, and
3. Include ‘undetectable knives’ among the knives and other novelties listed in § 265.10 which are unlawful to manufacture in NY.

We are not aware of crime reporting data that suggested a need for this amendment. The criminal use or possession of what is to be defined as an ‘undetectable knife’, could already be charged and prosecuted under the category of ‘dangerous knife’. Moreover, as defined in the amendment, an improvised or ‘homemade’ undetectable knife is excluded;

“Undetectable knife” means any knife or other instrument, which does not utilize materials that are detectable by a metal detector or magnetometer when set at a standard calibration, that is capable of ready use as a stabbing or cutting weapon and was commercially manufactured to be used as a weapon.

Several commercial knifemakers offer pliable rubber replicas to be used for training purposes. We believe that such items would not be prohibited under the amendment as being neither capable of ready use as a stabbing or cutting weapon; nor manufactured to be used as a weapon.  However, an item suitable for stabbing or cutting which resembles a knife and is promoted as a ‘tactical letter opener’ may be prohibited.

One should be aware that since ‘undetectable knife’ will be part of § 265.01(2) beginning November 2019, possession of such a knife will allow the inference of unlawful intent as discussed below. One should also realize that while a ‘homemade’ non-detectable knife will not be prohibited under the amendment, such an item can be considered a ‘dangerous knife’ – now, or after the amendment takes effect. Any legal knife can be a ‘dangerous knife’ under the fluid

Evidentiary Presumptions

The low threshold in New York whereby a knife might be characterized as dangerous and thus unlawful under § 265.01 is made worse by the evidentiary presumption of unlawful intent contained in § 265.15 (4).

§ 265.01 (2) provides that a person is guilty of criminal possession of a weapon in the fourth degree if he possesses any dagger, dangerous knife, dirk, machete razor, or stiletto with the intent to use the same unlawfully against another.

In other words, there are 2 elements to a violation of this law:

1. Possession of a dangerous knife, – – or any dagger, dirk, or stiletto – – along with,
2. The intent to use the same unlawfully against another.

The prosecution must, ordinarily, allege and prove all elements. However, New York law per § 265.15 (3), relieves the prosecution of this burden to prove unlawful intent by means of an evidentiary presumption:

The possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.

No specific allegation of intent to use unlawfully against another is required. The prosecution may expose someone to the expense, and inconvenience of a criminal trial along with the risk of a criminal conviction without good faith evidence of criminality. The jury may, but is not required to, find unlawful intent based on no evidence beyond mere possession. People v. Galindo, 23 NY3d 719 (2014).

Another subsection, § 265.15 (3), provides that if among other items any dirk, dagger, stiletto, or switchblade is found in an automobile, it is presumed to be in the possession of all occupants of the vehicle unless it was found ‘upon the person’ of one of the occupants.

Prior Conviction of Any Crime

Criminal possession of a weapon in the third degree, a felony, occurs when one commits a violation of § 265.01 (Criminal Possession of a Weapon (4^th degree) and has previously been convicted of any crime. See § 265.02. It should be noted that the prior conviction does not have to have been a crime of violence, nor does it apply only to convictions in New York.  It is not inconceivable that possession of a wholesome slip joint pocket knife; lively circumstances; and a prior plastic straw conviction could cascade into a felony.

Non-Citizens

It is unlawful persons who are not U.S. citizens to possess any of the weapons described in § 265.02 even if the presence of such person in this country is authorized by federal Law, although, New York passed a law on June 17, 2019 which will allow illegal aliens in the state to apply for New York State issued driver licenses. If there is any consistency in New York law, it is that knives are less welcome than illegal aliens.

Exemptions

There are various exemptions applicable to the NY Penal Code §265 which are found at § 265.20. There is a significant exemption for ‘switchblade’ knives which provides that:

a.  Paragraph (h) of subdivision twenty-two of section 265.00 and sections 265.01, 265.01-a, subdivision one of section 265.01-b, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15, 265.36, 265.37 and 270.05 shall not apply to:

6. Possession of a switchblade for use while hunting, trapping or fishing by a person carrying a valid license issued to him pursuant to section 11-0713 of the environmental conservation law.

If one has a valid hunting, fishing, or fur-trapping license, the criminal possession sections, and the evidentiary presumption sections, set forth above shall not apply to a ‘switchblade’ he or she may possess. Accordingly, it is not unlawful for an individual holding an appropriate NY State issued license to own or possess an automatic knife, which he or she may ‘use’ or carry ‘while hunting, trapping, or fishing’. This exemption should not be understood to allow carrying an automatic knife apart from the actual pursuits specified.

The annual fee for a NY freshwater fishing license is $25 for residents or $50 for non-residents. There is no training requirement and the license may be acquired online. www.dec.ny.gov/permits/6091.html.  The annual fee for a resident hunting license is $22 and requires a one-time successful completion of the prescribed hunter safety training course.

(Military, Law Enforcement)

There is a more extensive ‘shall not apply to’ exemption for law enforcement and persons in the military at § 265.20 (a) (1) which provides:

Paragraph (h) of subdivision twenty-two of section 265.00 and sections 265.01 , 265.01-a, subdivision one of section 265.01-b , 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15, 265.36, 265.37 and 270.05 shall not apply to:

1. Possession of any of the weapons, instruments, appliances or substances specified in sections 265.01 , 265.02 , 265.03 , 265.04 , 265.05 and 270.05 by the following:

(a) Persons in the military service of the state of New York when duly authorized by regulations issued by the adjutant general to possess the same.

(b) Police officers as defined in subdivision thirty-four of section 1.20 of the criminal procedure law .

(c) Peace officers as defined by section 2.10 of the criminal procedure law .

(d) Persons in the military or other service of the United States, in pursuit of official duty or when duly authorized by federal law, regulation or order to possess the same.

(e) Persons employed in fulfilling defense contracts with the government of the United States or agencies thereof when possession of the same is necessary for manufacture, transport, installation and testing under the requirements of such contract.

Comments

Most people carry knives so that they may be equipped to address the myriad tasks of everyday life; equipped to respond to some, unforeseeable but possible emergency, situation; and as a possible defensive weapon. In any encounter with New York law enforcement, one should focus on the tool / everyday tasks aspect the knife he or she may be carrying. Avoid the ‘for protection’ aspect. New York remains resistant to the fact that an individual’s right to keep and bear arms for defensive purposes as memorialized in the U.S. Constitution applies in New York State and in New York City by reason of the holding of the US Supreme Court in McDonald v. Chicago, 561 US 742 (2010).

Updated August 13, 2019, by Daniel C. Lawson