Legal Aid Society (
Monica Drinane and
Emanuel Saidlower of counsel),
Law Guardian, for respondent.
Michael D. Hess, Corporation Counsel of New York City (
Diana Kelly of counsel), for petitioner.
OPINION OF THE COURT
FRAN L. LUBOW, J. Respondent moves for dismissal of the instant petition charging premises by a person under the age of 22. In enacting the statute, the City Council noted that: "The council hereby finds that the number of school safety incidents which take place in the city's schools are disturbingly high, and are rising, and that these incidences place students and staff at unacceptable risk of injury and disrupt the learning environment * * * the council further finds that * * * [box cutters] have become the `weapon of choice' in the city's schools * * * and [that] banning the possession of box cutters by persons under twenty-two years of age on school premises, will significantly help in reducing the number of violent school safety incidents and in ensuring that schools are the safe havens of knowledge and education that children need and deserve." (Legislative findings, Administrative Code § 10-134.1 [a].) The City Council does not discuss banning the possession of box cutters that are being used unlawfully or for a criminal purpose. Rather, the banning of possession, on school premises, of box cutters by persons under the age of 22, in and of itself, is proscribed by the statute. The charge is therefore clearly intended by the Legislature to be one of strict liability. In addition, the City Council enacted Administrative Code § 10-134.1 (f) (1) which provides an affirmative defense to the instant crime. "When * * * an `affirmative defense' is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence" (see Penal Law § 25.00 [2]). The statute states that it is an affirmative defense that "such person is traveling to or from school premises, where [the box cutter] was or will be used for a valid instructional or school related purpose and used only under the supervision of a school staff member or other authorized instructor, and such person has not displayed the box cutter in a menacing or threatening manner" (see Administrative Code § 10-134.1 [f] [1]). The purpose of the respondent's possession of the box cutter is therefore not an element of the crime to be proved by the presentment agency, but is rather available (as an affirmative defense) to the respondent whose burden it is to establish the legality of the possession at trial. Based upon the foregoing, respondent's motion is denied in its entirety.