Legal Aid Society, New York City (
Andrea Sibley of counsel), for defendant.
Robert M. Morgenthau, District Attorney of New York County (
Matthew Bassiur of counsel), for plaintiff.
OPINION OF THE COURT
ELLEN M. COIN, J. Defendant is charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). By omnibus and supplemental motion, he moves A "weapon" is an instrument of offensive or defensive combat. (Matter of Jamie D., 59 NY2d 589, 592 [1983].) Some knives, while usable for utilitarian purposes, are primarily intended for use as a weapon (e.g., a bayonet, a stiletto, or a dagger). (Supra, 59 NY2d, at 592-593.) However, a knife designed primarily for use as a utilitarian utensil is not deemed a weapon, absent physical modification.[*] Thus, the presumption of unlawful intent under Penal Law § 265.15 (4) has been held inapplicable to a razor (Matter of Francisco C., 238 AD2d 224, 226 [1st Dept 1997]), and to a straight blade knife with a handle (Matter of Edward K., 226 AD2d, supra, at 1098). The complaint fails to allege any facts which would lead to the inference that the knife which is the subject of the weapon possession charge is intended for use primarily as a weapon. While it is without question that the pen which concealed the knife was converted from its original purpose as a writing instrument, the mere concealment of the knife within the pen, without more, will not permit the application of the statutory presumption of intent. Accordingly, the motion to dismiss count one of the complaint is granted, and the charge is dismissed.
Other Motions
Defendant's motion to suppress physical evidence is granted to the extent that a Mapp/Dunaway hearing shall be held to determine whether such evidence is the tainted fruit of an illegal search or seizure of the defendant. Defendant's motion to preclude evidence of prior convictions or bad acts is reserved for determination by the trial court. [*] Alternatively, a utilitarian utensil may be deemed a weapon where the circumstances of its possession permit such a finding. (Matter of Jamie D., 59 NY2d, supra, at 593.) No such circumstances are alleged here.