New York Knife Laws

At a Glance:

New York State law regarding the possession of knives is arbitrary, indefinite, and confusing. The deceptively complex statutory scheme is exacerbated by judicial intrusion into the legislative domain. Any knife can become a “dangerous knife” based upon a judicially created definition and create the risk of a criminal conviction even in the absence of criminal conduct on the part of the knife possessor. “Switchblade” (automatic) knives may be lawfully manufactured, sold to, and possessed by a broad class of state and local employees, active-duty U.S. Military, as well as licensed hunters, fur trappers, and fishermen. (See the below discussion regarding exemptions.) The possession of “switchblade” knives is otherwise unlawful for those not exempted.

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
N.Y. Criminal Procedure Law § 1.20 Definitions of terms of general use in this chapter
N.Y. Criminal Procedure Law § 2.10 Persons designated as peace officers

Restricted Knives: 

The possession of switchblades, ballistic knives, metal knuckle knives, and cane swords by the non-exempted is prohibited. An extremely broad “shall not apply to” exception obtains for the manufacture and possession of “switchblade” knives as discussed below under “exemptions.”   A dubious “memorandum decision by the New York Court of Appeals” in 2018 provides that an assisted opening knife may be considered a “switchblade.” See the below comments under “Assisted Opening.”

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 to a non-exempted individual.

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 a 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 the monopolized mass transit.

Statewide Preemption:

No.

Discussion:

Exemptions

While New York knife law is quite restrictive to most individuals, it is remarkably permissive to a broad class of public sector employees classified as “police officers” or “peace officers.” The catalog of who qualifies is too extensive to list herein.  “Police officers” and “peace officers are described and listed in § 1.20 and § 2.20 respectively of the criminal procedure law.

§ 265.20 Exemptions provides:

a. Paragraph (h)of subdivision twenty-two of section 265.00 and sections 265.01, 265.01-a, 265.01-b, 265.01-c, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15, 265.36, 265.37, 265.50, 265.55 and 270.05 shall not apply to:

1. Possession of any of the weapons, instruments, appliances or substances specified in sections 265.01, 265.01-c, 265.02, 265.03, 265.04, 265.05, 265.50, 265.55 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.

. . .

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. (Bold type supplied for emphasis.)

It may be awkward to recall the various statutes pertaining to knives when reading the text of the exemption statute. In plain language – and as it pertains to knives – the “exemption” statute states that § 265.01 “Criminal possession of a weapon in the fourth degree” which restricts the possession of “switchblade knives” or “ballistic knives”; and § 265.10 which restricts the manufacture, transport, and sale of aid knives shall not apply to the possession of restricted weapons to the broad class of exempted persons.

“Police” and “Peace” Officers

Sections 265.01 and 265.02 are respectively “Criminal Possession of a Weapon in the 4^th Degree and 3^rd Degree. Both sections restrict the possession of knives among other things.

265.01 “Criminal possession of a weapon in the fourth degree” states:

A person is guilty of criminal possession of a weapon in the fourth degree when:

(1) He or she possesses any firearm, electronic dart gun, electronic stun gun, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”;

(2) He or she possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, undetectable knife or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.

§ 265.20, the exemptions statute, states that these restrictions “shall not apply” to a broad class of exempted persons which extends beyond traditional law enforcement and encompasses many administrative or clerical positions. Random selections from a very extensive list of § 2.20 designated peace officers include:

• Special investigators appointed by the state board of elections,
• Officers or agents of a duly incorporated society for the prevention of cruelty to animals,
• Authorized agents of the municipal directors of weights and measures in the counties of Suffolk, Nassau, and Westchester,
• Transportation supervisors in the city of White Plains appointed by the commissioner of public safety in the city of White Plains,
• Employees of the New York city department of finance assigned to enforcement of the tax on cigarettes,
• Employees of the department of health designated pursuant to section thirty-three hundred eighty-five of the public health law pertaining to prescriptions,
• Harbor masters appointed by a county, city, town, or village,
• Court clerks of the unified court system in the first and second departments.

Those exempted may lawfully acquire and possess, among other things, any switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star” dagger, dangerous knife, dirk, machete, razor, or stiletto and which are otherwise restricted.

Active-Duty Military – Automatic Knife Exemption

§ 265.20 exempts persons in the military or other service of the United States, “when duly authorized by federal law” from the various listed restrictions. The New York State law exemption by its terms applies to:

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.

Federal law, 15 U.S.C. § 1244, authorizes any member of the Armed services to acquire and possess an automatic knife. The section provides that the prohibitory provisions of the Federal Switchblade Act do not apply to “the Armed Forces or any member or employee thereof acting in the performance of his duty.”                            

Hunting, Fishing, and Fur Trapping – Automatic Knives

§ 265.20 provides that the “switchblade” restrictions contained in § 265.01 shall not apply to:

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

Accordingly, those holding the appropriate license may acquire and carry an automatic knife “for use while” engaged in the licensed activity.

The annual fee for a New York 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.

Exemptions Pertaining to Manufacturing, Transport, and Sale

New York law provides a lawful means for the persons exempted from the restrictions discussed above to lawfully acquire the otherwise prohibited items. Essentially, commerce in automatic knives – and other specified items – is not unlawful where the consumer is in the exempted class.

§ 265.10 captioned “Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances” generally provides that it is unlawful to manufacture, transport, ship, or dispose of any switchblade knife, pilum ballistic knife, undetectable knife, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, Kung Fu star, chuka stick, sandbag or slungshot. Notwithstanding, by reason of § 265.20 “Exemptions”, § 265.10 – the section that contains the prohibitive provisions – “shall not apply” to possession of automatic knives by any of the above described.

It should be noted that under New York law, § 265.20 Exemptions is not an affirmative defense. Accordingly, the prosecution would have the burden of proving a sale or disposition to an individual who is not the beneficiary of an exemption.

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)

One Steven Berrezueta was observed to be in possession of a knife in a New York City subway station. The arresting officer found that the knife opened by pushing on a projection of the blade. Berrezueta was charged with possession of a “switchblade knife” and convicted in a non-jury trial in early 2016. He appealed the conviction on the sufficiency of the statement of charges and sufficiency of the evidence. The conviction was affirmed by an intermediate appellate court in a “per curium” non-reported opinion in May of 2017 which states:

based upon his “training and experience as a police officer and because, when [he] applied hand pressure to a spring-loaded portion of the blade of the knife protruding from the handle of the knife, the blade swung open automatically,” sufficed to show the basis for the officer’s conclusion that defendant’s knife was a switchblade. . . Although the officer failed to specifically state that the “button, spring or other device [was] in the handle of the knife” . . . the weapon described possessed general features common to a switchblade so as to give defendant “sufficient notice of the charged crime[s] to satisfy the demands of due process and double jeopardy” (Citations omitted).

The State’s high court granted leave to appeal in October of 2017. Typically, a high court grants such leave with the intent of undertaking a reasoned analysis of an unsettled issue. The high court did not undertake any such reasoned analysis. Rather, it simply issued a single paragraph “memorandum” opinion in the case of People v. Berrezueta 104 N.E.3d 726 in June of 2018.

A single Judge on the 7-member panel dissented and wrote a lengthy and thoughtful opinion. It states in part:

Defendant claims that the accusatory instrument negates an element of the crime and thus is facially insufficient, as it states the activating button or device was on the knife’s blade, rather than “in the handle of the knife” as required by the Penal Law’s definition of a “switchblade knife.” Defendant similarly argues that the evidence at trial was insufficient to establish that the knife found on his person was a switchblade, since while the knife introduced at trial and described in court opens by use of a pressure-sensitive device, that device is not located in the handle.

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.  The New York Court of Appeals had an opportunity to offer some explanation to the citizens of New York which it thereafter ignored. The Berrezueta case suggests that assisted opening knives should be avoided in New York.

Automatic Knife

§ 265.00 provides a definition for ”automatic knife”:

5-c. “Automatic knife” includes a stiletto, a switchblade knife, a cane sword, a pilum ballistic knife, and a metal knuckle knife.

This definition was created solely for the purpose of allowing The Wawarsing Historical Society to establish a knife museum in Napanoch, New York, and has no current application apart from the said museum.

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). Conventions or principles of statutory interpretation have developed over centuries of Anglo-American law to assist courts in the interpretation process.

One such rule – noscitur a sociis – or known by its associates provides that the meaning of a term such as “dangerous knife” may be known by associated words which include “dagger”, “dirk”, and “stiletto.” The rule of statutory interpretation – Ejusdem generus – meaning of the same kind would apply to the “other dangerous or deadly instrument” wording and confine it to items in the class as specifically stated.

In any event, the role of the court is interpretation rather than revision. The New York State Constitution states in Article 3 § 1 “The legislative power of this state shall be vested in the senate and assembly.”

The case of Matter of Jamie D., 59 N. Y. 2d 589 (1983), involved the issue of whether possession of a steak knife constituted possession of a “dangerous knife.” The conventional and constitutional approach would be to determine the meaning of “dangerous knife” as the law had been enacted.

The Court of Appeals created ex nihilo a 3-part definition for “dangerous knife” which has no basis in the statute:

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’.

The glaring problem with the New York rule on circumstances of possession as established in Matter of Jamie D. is that it allows a “common utilitarian knife” possessed by an individual to be “deemed” dangerous based on undefined circumstances. 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 the said knife, by reason of the circumstances which otherwise 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 penknife 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 “penknife” in his right front pocket:

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 where, under § 265.01, the circumstances of possession were no more remarkable than that the defendant had a pocketknife in his right front pocket:

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.”

The criminality of possessing an otherwise legal knife “for protection” may be unconstitutional in light of the decision by the U.S. Supreme Court in New York State Rifle & Pistol Association, Inc v Bruen.

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 the fact that it is no longer restricted under § 265.01(1).

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 or face mask conviction could cascade into a felony.

Non-Citizens

It is unlawful for 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 allows illegal aliens in the state to apply for New York State issued driver licenses. Within New York, knives are less welcome than illegal aliens.

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 of the knife he or she may be carrying. Avoid the “for protection” aspect. New York remains resistant to the fact that apart from the broad class of exempted public employees and other favored persons, an individual has a right to keep and bear arms for defensive purposes.

Updated July 6, 2022, by Daniel C. Lawson