The People, Respondent,v.Elliot Parrilla, Appellant.

Brief

N.Y.March 30, 2016

APL-2015-00224 To be argued by ANDREW E. SEEWALD (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ELLIOT PARRILLA, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 PATRICK J. HYNES ANDREW E. SEEWALD ASSISTANT DISTRICT ATTORNEYS Of Counsel DECEMBER 1, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 THE EVIDENCE AT TRIAL ............................................................................................ 4 The People’s Case ....................................................................................................... 4 The Defense Case ....................................................................................................... 7 POINT I THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE PEOPLE WERE REQUIRED TO ESTABLISH DEFENDANT’S KNOWLEDGE THAT HE POSSESSED A KNIFE ....................................................................... 10 A. Statutory construction and well-established precedent demonstrate that the People were required to prove only defendant’s knowing, voluntary possession of the knife, not that he knew the knife bore the characteristics of an illegal gravity knife. .. 11 B. The imposition of strict liability under Penal Law § 265.01(1) comports with principles of due process. .................................................................................................... 29 POINT II THE TRIAL COURT PROPERLY DECLINED TO DISCHARGE A DELIBERATING JUROR WHO ASSURED THE PARTIES SHE COULD SET ASIDE HER CONCERN ABOUT LIVING NEAR A LOCATION MENTIONED DURING THE TRIAL AND JUDGE THE CASE SOLELY ON THE EVIDENCE .................................................................................................. 45 A. The Relevant Record ................................................................................................ 45 B. After appropriate inquiry, the trial court properly found no cause to discharge the deliberating juror. ........................................................................................................... 48 CONCLUSION ................................................................................................................... 58 TABLE OF AUTHORITIES UNITED STATES CONSTITUTIONAL PROVISIONS U.S. Const. 6th, 14th Amends. ........................................................................................... 57 FEDERAL CASES Ehrlich v. Town of Glastonbury, 348 F.3d 48 (2nd Cir. 2003) .............................................. 41 Lambert v. California, 355 U.S. 225 (1957) ...................................................................... 35-36 Morissette v. United States, 342 U.S. 246 (1952) ............................................................... 30-32 Staples v. United States, 511 U.S. 600 (1994) ............................................................ 30, 33-36 United States v. Balint, 258 U.S. 250 (1922) ....................................................... 30-31, 33, 36 United States v. Freed, 401 U.S. 601 (1971) .......................................................................... 30 United States v. Irizarry, 509 F. Supp. 2d 198 (E.D.N.Y. 2007) ..... 21-22, 31, 38-39, 41-42 FEDERAL STATUTES National Firearms Act ..................................................................................................... 34-36 NEW YORK STATE CONSTITUTIONAL PROVISIONS N.Y. Const., art. I, §§ 6, 2 .................................................................................................... 51 STATE CASES Giblin v. Nassau County Med. Center, 61 N.Y.2d 67 (1984) ................................................. 18 Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577 (1998) ............................... 11 Matter of Michael Grudge M., 80 A.D.3d 614 (2nd Dept. 2011) ......................................... 15 People v. Albert, 85 N.Y.2d 851 (1995)................................................................................. 50 People v. Anderson, 70 N.Y.2d 729 (1987) ............................................................................ 53 People v. Ansane, 96 A.D.2d 96 (4th Dept. 1983) ............................................................... 17 People v. Berrier, 223 A.D.2d 456 (1st Dept. 1996) ....................................................... 10, 15 -ii- People v. Brannon, 16 N.Y.3d 596 (2011).............................................................................. 15 People v. Brown, 100 A.D.3d 1035 (3rd Dept. 2012) .......................................................... 39 People v. Buford, 69 N.Y.2d 290 (1987) ............................................................... 51-52, 54-55 People v. Callahan, 80 N.Y.2d 273 (1992)............................................................................. 50 People v. Carrasco, 262 A.D.2d 50 (1st Dept. 1999), lv. denied, 93 N.Y.2d 1015 (1999) ................................................................................... 52 People v. Catala, 44 A.D.3d 388 (1st Dept. 2007) ............................................................... 39 People v. Cavines, 70 N.Y.2d 882 (1987) ............................................................................... 38 People v. Cohen, 57 A.D.2d 790 (1st Dept. 1977) .......................................................... 14, 28 People v. Daly, 33 Misc.3d 963 (Crim. Ct. N.Y. Co. 2011) .......................................... 26, 38 People v. Daniels, 218 A.D.2d 589 (1st Dept. 1995)............................................................ 53 People v. Davis, 112 Misc.2d 138 (Crim. Ct. Bronx Co. 1981) ............ 14, 16-17, 30, 33-34 People v. Diaz, 21 A.D.3d 58 (1st Dept. 2005) ................................................................... 39 People v. Dolson, 142 Misc.2d 779 (Onondaga Co. 1989) ............................................ 24, 42 People v. Durant, __ N.Y.3d __, 2015 N.Y. LEXIS 3661 (November 23, 2015) ................................................................................................................................. 26 People v. Everson, 100 N.Y.2d 609 (2003) ............................................................................ 50 People v. Ford, 66 N.Y.2d 428 (1985) ................................................................................... 28 People v. Golo, __ N.Y.3d __, 2015 N.Y. LEXIS 3656 (November 23, 2015) ................................................................................................................................. 11 People v. Gordon, 23 N.Y.3d 643 (2014) ............................................................................... 32 People v. Gozdalski, 239 A.D.2d 896 (4th Dept. 1997), lv. denied, 90 N.Y.2d 858 (1997) ..................................................................................... 54 People v. Graham, 55 N.Y.2d 144 (1982) .............................................................................. 18 People v. Herbin, 86 A.D.3d 446 (1st Dept. 2011) .............................................................. 15 -iii- People v. Hicks, 6 N.Y.3d 737 (2005) ................................................................................... 50 People v. Hilton, 147 A.D.2d 427 (1st Dept. 1989) ............................................................. 54 People v. Johnson, 94 N.Y.2d 600 (2000) ............................................................................... 52 People v. Lawrence, 256 A.D.2d 358 (2nd Dept. 1998) ....................................................... 39 People v. Marrero, 69 N.Y.2d 382 (1987) .............................................................................. 15 People v. Mejias, 21 N.Y.3d 73 (2013) .............................................................................. 51-52 People v. Merriweather, 139 Misc.2d 1039 (Dist. Ct. Nassau Co. 1988) ............................. 14 People v. Messado, 49 A.D.2d 560 (1st Dept. 1975) ............................................................ 15 People v. Miranda, 76 A.D.3d 466 (1st Dept. 2010), aff’d, 19 N.Y.3d 912 (2012) ............................................................................................ 15 People v. Mott, 137 Misc.2d 757 (Jefferson Co. Dec. 16, 1987) ........................................ 24 People v. Munoz, 9 N.Y.2d 51 (1961) .................................................................................... 40 People v. Parnell, 60 A.D.3d 1087 (2nd Dept. 2009), lv. denied, 12 N.Y.3d 857 (2009) ................................................................................ 52-53 People v. Parrilla, 112 A.D.3d 517 (1st Dept. 2013) ....................................................... 3, 48 People v. Persce, 204 N.Y. 397 (1912) ........................................................................ 25, 27, 37 People v. Pizarro, 24 A.D.3d 309 (1st Dept. 2005), aff’d, 7 N.Y.3d 840 (2006) .............................................................................................. 53 People v. Polk, 166 A.D.2d 177 (1st Dept. 1990) ................................................................ 38 People v. Ramos, 193 Misc.2d 564 (Crim. Ct. Bronx Co. 2002) ......................................... 38 People v. Rodriguez, 71 N.Y.2d 214 (1988) ............................................................... 51, 53, 56 People v. Santi, 3 N.Y.3d 234 (2004)..................................................................................... 11 People v. Santiago, 255 A.D.2d 63 (1st Dept. 1999), lv. denied, 94 N.Y.2d 829 (1999) ..................................................................................... 57 People v. Saunders, 85 N.Y.2d 339 (1995) ............................................... 14-15, 28-29, 31, 39 -iv- People v. Simon, 148 Misc.2d 845 (Crim. Ct. Bronx Co. 1990)..................................... 16-17 People v. Small, 157 Misc. 2d 673 (Sup. Ct. N.Y. Co. 1983) .............................................. 37 People v. Smith, 309 A.D.2d 608 (1st Dept. 2003) .............................................................. 38 People v. Thompson, 245 A.D.2d 321 (2nd Dept. 1997) ...................................................... 39 People v. Torres, 80 N.Y.2d 944 (1992) ................................................................................. 50 People v. Velasquez, 139 Misc.2d 822 (Sup. Ct. N.Y. Co. 1988) .................................. 16, 18 People v. Visarities, 220 A.D. 657 (1st Dept. 1927) ....................................................... 27, 37 People v. Voltaire, 18 Misc. 3d 408 (Crim. Ct. N.Y. Co. 2007) .......................................... 36 People v. Walos, 229 A.D.2d 953 (4th Dept. 1996) ............................................................. 39 People v. Warren, 27 A.D.3d 496 (2nd Dept. 2006), lv. denied, 7 N.Y.3d 796 (2006) ....................................................................................... 56 People v. Wood, 58 A.D.3d 242 (1st Dept. 2008) ................................................................ 31 STATE STATUTES CPL Article 370 .................................................................................................................... 34 CPL § 170.40 ......................................................................................................................... 34 CPL § 210.40 ......................................................................................................................... 34 CPL § 270.35 ......................................................................................................................... 51 Penal Law Article 15 ........................................................... 11-12, 14-15, 18, 20, 24, 27, 36 Penal Law § 15.00(2) .......................................................................................... 12, 14, 27-29 Penal Law § 15.05(2) ....................................................................................................... 27-28 Penal Law § 15.10 ..................................................................................................... 12-13, 20 Penal Law § 15.15 ................................................................................................................. 13 Penal Law § 15.15(1) ............................................................................................................ 13 Penal Law § 15.15(2) ................................................................................................ 13-14, 20 -v- Penal Law § 70.06 ................................................................................................................. 33 Penal Law § 70.15(1) ...................................................................................................... 33, 36 Penal Law Article 265 .................................................................................................... 18, 36 Penal Law § 265.00(5) .............................................................................................. 12, 38, 41 Penal Law § 265.01 ...................................... 10-18, 20, 23-27, 29, 31, 33, 35-36, 39-41, 44 Penal Law § 265.02 ............................................................................ 1, 12, 17, 18, 28, 33, 41 OTHER AUTHORITIES Switchblade Knives: Hearing Before a Subcommittee of the Committee on Interstate and Foreign Commerce, House of Rep., 85th Cong., 2d Sess. 13, 29 (1958) ........................................................................................................... 23 Emma Harrison, Group Seeks Ban on Gravity Knife, New York Times (Dec. 19, 1957) ..................................................................................................................... 22, 38 http://open.nysenate.gov/legislation/bill/S5650-2013 .................................................. 25 http://www.nysenate.gov/legislation/bills/2015/S3675 ............................................... 25 John Eligon, 14 Stores Accused of Selling Illegal Knives, New York Times (June 17, 2010) ................................................................................................................ 43 Laura Italiano, The ‘Honed’ Depot, New York Post (June 18, 2010) ................................ 43 Denzer and McQuillan, Practice Commentary to Penal Law § 15.00 et. seq., Book 39 ................................................................................................................... 19 Donnino, Practice Commentary, McKinney’s Cons. Laws ............................................ 24 -vi- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ELLIOT PARRILLA, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, Associate Judge of the Court of Appeals, defendant Elliot Parrilla appeals from a December 19, 2013, order of the Appellate Division, First Department. By that order, the Appellate Division affirmed a July 17, 2012, judgment of the Supreme Court, New York County, convicting defendant, following a jury trial, of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]), and sentencing him, as a second felony offender, to an indeterminate prison term of from two-and-one-half to five years. Defendant is currently on parole. During the evening of February 3, 2011, in upper Manhattan, police officers in an unmarked car observed a black Saab illegally parked at a bus stop. After several minutes, the Saab pulled out without signaling, and the officers followed it. Several times the Saab slowed down, but its brake lights did not come on. After a few minutes, the police officers turned on their lights and siren and pulled the Saab over. The officers ordered defendant, the Saab’s driver, out of the Saab and frisked him, recovering a knife from defendant’s pants pocket. One of the officers tested the knife by flicking his wrist, which caused the blade of the knife to open and lock in place, establishing that it was a gravity knife. By Indictment 3856/2011, filed on July 29, 2011, defendant was charged with Criminal Possession of a Weapon in the Third Degree.1 On May 24, 2012, following a pre-trial hearing not at issue on appeal, defendant proceeded to trial before the Honorable Arlene Goldberg and a jury. On May 30, 2012, defendant was convicted as charged. On July 17, 2012, defendant was sentenced as noted above. On appeal to the Appellate Division, First Department, defendant contended that the trial court erred by instructing the jury that the People had to prove only that defendant knowingly possessed the knife, not that he knowingly possessed a knife that fit the statutory definition of a gravity knife. In addition, defendant claimed that the court erred by refusing to discharge a sworn juror who, during deliberations, informed the court that she lived near one of the locations mentioned during the trial. 1 A special information alleged that defendant had previously been convicted of Criminal Sale of a Controlled Substance in the Fifth Degree. Defendant admitted that conviction prior to trial (A. 228-30). Parenthetical references beginning with “A” are to Defendant’s Appendix. -2- Defendant also contended that the jury’s verdict was contrary to the weight of the evidence and that his sentence was excessive. In a decision and order dated December 19, 2013, the Appellate Division unanimously affirmed defendant’s conviction. People v. Parrilla, 112 A.D.3d 517 (1st Dept. 2013) (A. 2-4). The Appellate Division upheld the trial court’s jury charge, concluding that the court had properly instructed the jury that the People needed to prove “defendant’s knowledge that he possessed a knife in general,” not “that the knife met the statutory definition of a gravity knife.” 112 A.D.3d at 517. The Appellate Division also found that the trial court properly declined to discharge the deliberating juror after she “unequivocally confirmed that she would follow the court’s instructions, and that her proximity to defendant’s ex-girlfriend’s residence would not affect” her “evaluation of the evidence.” Id. at 517-18. The court found that the verdict comported with the weight of the evidence, noting that an “officer who tested the knife described the manner in which it operated, and also demonstrated its operability in court.” Parrilla, 112 A.D.3d at 517. Finally, the court declined to reduce defendant’s sentence. Id. at 518. By order dated August 17, 2015, Judge Read granted defendant’s application for leave to appeal to this Court (A. 1). Before this Court, defendant renews his challenges to the jury instruction and the decision not to discharge the deliberating juror. -3- THE EVIDENCE AT TRIAL The People’s Case On February 3, 2011, at approximately 10:30 p.m., Police Officers BRIAN CREGAN and STEPHEN HILLMAN and Sergeant Robert Kelly were parked in an unmarked car on Lexington Avenue between East 122nd and 123rd Streets in Manhattan (Cregan: A. 260, 283-84; Hillman: A. 369-70, 372-74). A black, four-door, 2001 Saab had been parked for about five minutes at a bus stop on Lexington Avenue between East 121st and 122nd Streets (Cregan: A. 263-64, 267, 289; Hillman: A. 374, 382, 422, 425). The Saab pulled out of the bus stop without signaling, and the police officers followed it south on Lexington Avenue (Cregan: A. 264-65; Hillman: A. 383- 84). As the Saab approached 120th Street, it slowed down, but its brake lights did not come on (Cregan: A. 268; Hillman: A. 384-85). The officers continued to follow as the Saab turned left on East 120th Street; the Saab slowed down as it approached Third Avenue and again as it approached Second Avenue, and on each occasion its brake lights did not come on (Cregan: A. 269-70; Hillman: A. 384-85). The police officers ran the Saab’s license plate through their “mobile digital terminal,” which indicated that the Saab was registered to a woman named Kelly Diaz (Cregan: A. 269-70, 290; Hillman: A. 385-86). Between Second and First Avenues, the officers put on their turret lights and siren and the Saab pulled over (Cregan: A. 270, 292, 335-36; Hillman: A. 387-88, 423-24). As the officers approached the Saab on foot, defendant was in the driver’s seat and Edwin Fernandez was in the passenger -4- seat (Cregan: A. 272-74, 293, 295-98, 352-55; Hillman: A. 388, 393). An odor of marijuana and PCP emanated from the Saab (Cregan: A. 352-53; Hillman: A. 389-90, 417). Officer Cregan asked defendant for his driver’s license and registration. When defendant did not produce them, Officer Cregan asked defendant to step out of the Saab (Cregan: A. 272-74, 293, 295-98, 353).2 Defendant stepped out and Officer Cregan patted him down for weapons (Cregan: A. 274, 300-01). At the same time, Officer Cregan asked defendant if he had any weapons, to which defendant replied that he had a knife in his pocket (Hillman: A. 396). Officer Cregan removed a folding razor knife from defendant’s front right pants pocket and handed it to Officer Hillman (Cregan: A. 275, 279, 302-04, 354-55; Hillman: A. 396-97, 399-400; People’s Exh. 3 [the knife]). Officer Hillman tested the knife by flicking his wrist with a “downward movement” that caused the blade to “open[ ] up” and “lock into place” (Hillman: A. 397-98).3 The knife had a red metal handle with the “Husky” brand name printed in white on one side and a belt clip on the other side (People’s Exhibit 3). On one end of the handle was a silver pivot screw by which the tang was attached to the handle. The 2 On cross-examination, Officer Cregan testified alternately that he did not “remember” whether defendant produced a driver’s license or that defendant did not produce a driver’s license “from what I remember” (Cregan: A. 297-98). 3 Officer Hillman had received annual training in identifying “dangerous, deadly weapon[s].” In the officer’s “experience,” a knife is a “gravity knife” if it can be opened with a one-handed “flick of your wrist downward or outward” (Hillman: A. 364-66). -5- pivot screw head had two notches on opposite sides, allowing it to be tightened or loosened with a tool (id.; see Parrilla: A. 482-83). The tang held a razor blade that protruded from the end of the tang and was “detachable and removable” (People’s Exhibit 3; Hillman: A. 432). On one side of the tang was a printed diagram instructing how to release the trapezoid-shaped razor blade from the tang by pressing a button along the top edge of the tang (marked “PRESS”) with one hand while using the other hand to slide the blade out of the end of the tang (People’s Exhibit 3).4 4 Although none of the information set forth in footnote 2 of Defendant’s Brief (at page 8 under the heading “People’s Case at Trial”) is in the record, and there was no evidence at trial as to the specific model name of the razor knife, we agree with defendant that the razor knife received in evidence at trial is similar in all material respects to the red- handled razor knife depicted as of November 24, 2015, in the main photograph on the Home Depot web page http://www.homedepot.com/p/Husky-Folding-Lock-Back-Utility- Knife-21113/100020658. (We note that several other photographs on that page depict a black-handled razor knife with an entirely different mechanism for removing the razor blade from the tang.) However, some of defendant’s other representations concerning the knife and the website are highly misleading. First, defendant is not correct in stating that “nothing on the [Home Depot] site indicates that [possession of the depicted razor knife] in New York is illegal.” In fact, the website plainly states just below the “Add To Cart” button: “Item cannot be shipped to the following state(s): AK, GU, HI, NY, PR, VI.” In addition, contrary to defendant’s suggestions (Defendant’s Brief: 9-10, 33 n.10), the diagram printed on the tang makes clear to any regular user of the knife that the button marked “PRESS” is used to release the razor blade from the tang, not for opening and closing the tang-and-razor-blade assembly from the handle (People’s Exh. 3). Finally, defendant cites Amazon customers’ “repeated complaint[s]” about “screws getting ‘loose’” to imply that the “blade” could become “loose” in some way relevant to this appeal (Defendant’s Brief: 8 n.2). But the customer complaints refer to the small screws that secure the razor blade in the tang, not – as would be relevant here – the pivot screw by which the tang rotates out of the handle. See http://www.amazon.com/husky-sure-grip-folding-lock-back-utility/dp/B0026SY730 (last viewed November 24, 2015). -6- At trial, Officers Cregan and Hillman identified defendant as the man from whom Officer Cregan recovered the knife (Cregan: A. 261-62; Hillman: A. 371). Additionally, Officer Hillman tested the knife in court by “flick[ing] his wrist in a downward motion,” causing the blade to open and lock into place (Hillman: A. 401- 03).5 The Defense Case On February 3, 2011, defendant ELLIOT PARRILLA was at the home of Kelly Diaz, defendant’s ex-girlfriend, on East 96th Street between First and Second Avenues (Parrilla: A. 456, 485).6 Defendant was helping Diaz’s father install floor tiles and was using several tools, including a “Husky” brand box-cutter knife defendant had bought in 2009 at a Bronx Home Depot for use at his then-current job “working construction” (Parrilla: A. 453, 456-57, 491-93). Defendant opened the knife “[w]ith two hands,” by holding the “base” of the knife with one hand and “pulling out the steel casing that has a blade in it” with the other (Parrilla: A. 454). Defendant closed the knife by pressing the “release button on the bottom” and then closing the knife 5 Officer Hillman demonstrated the gravity knife function of the knife to the jury at trial by flicking it open multiple times. Defense counsel stated that “the first time [Hillman] flicked it the blade did not lock into place,” to which the prosecutor stated that “[t]hat was not [his] observation” (A. 402). In summation, however, the prosecutor stated that when Officer Hillman flicked his wrist in court, “[t]he first time it did not come out,” which the prosecutor attributed to the knife having been “wrapped in duct tape” (A. 551). Whether or not there had been a less-than-successful first attempt, Officer Hillman flicked the knife to a fully open and locked position in court at least twice (A. 402). 6 Defendant had been convicted of a felony in March 2002 and of a violation in 2008 (Parrilla: A. 484, 507). -7- with two hands (Parrilla: A. 454-55).7 Defendant had never tried to open the knife with one hand the way that Officer Hillman had when he testified (Parrilla: A. 483). The knife had “a screw to tighten and loosen the blade,” but defendant had never adjusted it (Parrilla: A. 482-83). After finishing work on Diaz’s floor that evening, defendant received a telephone call from his friend Edwin Fontanez, who asked defendant to drive him to the Bronx (Parrilla: A. 457). At about 10 p.m., defendant drove from 96th Street in Diaz’s 2001 Saab, which she allowed him to use (Parrilla: A. 458, 485-86). Defendant had his tools with him, including the knife (Parrilla: A. 458, 493-94). When defendant got into the Saab, he took the knife out of his pocket and put it into the front console (Parrilla: A. 496-97). Defendant drove to 1990 Lexington Avenue between East 121st and 122nd Streets to pick up Fontanez (Parrilla: A. 459-60, 486). Defendant parked in front of the building “a little bit past the bus lane” (Parrilla: A. 460-61, 486-87). Defendant was parked for about 15 minutes before Fontanez got into the Saab (Parrilla: A. 470, 486- 87). Defendant signaled and pulled into traffic as he began driving to the Bronx (Parrilla: A. 470-71, 487-88). The brake lights on the Saab worked, and nobody was 7 Contrary to defendant’s current representation (Defendant’s Brief: 9-10), defendant did not testify that pressing the “release button” was one of the steps needed to open the knife (see Parrilla: A. 454-55). -8- smoking marijuana or any other drugs in the car, nor did the car smell of those drugs (Parrilla: A. 472, 510). On East 120th Street near Second Avenue, an unmarked police car put on its lights and siren, and defendant pulled over (Parrilla: A. 472, 500, 504). Police Officer Cregan walked to the Saab and knocked on the driver side window (Parrilla: A. 472- 73, 504). Defendant opened the door and handed over his license and registration (Parrilla: A. 473-74). Officer Cregan walked away from the Saab, then came back and asked defendant to step out (Parrilla: A. 474-75, 505). Defendant stepped out and Officer Cregan patted him down but did not find anything (Parrilla: A. 475, 505). Officer Cregan then searched the inside of the Saab (Parrilla: A. 476).8 At trial, defendant inspected the knife and testified that it was not in the same condition as it had been on February 3, 2011, in that at trial it had paint chips “between the blade and the handle” (Parrilla: A. 482; People’s Exhibit 3). To defendant, the knife appeared to be “looser” than when defendant had last possessed it (Parrilla: A. 484). 8 Defendant did not describe Officer Cregan’s recovery of the razor knife. -9- POINT I THE TRIAL COURT PROPERLY INSTRUCTED THE JURY THAT THE PEOPLE WERE REQUIRED TO ESTABLISH DEFENDANT’S KNOWLEDGE THAT HE POSSESSED A KNIFE (Answering Defendant’s Brief, Point I). At trial, defendant asked the court to instruct the jury that it could convict him of criminal possession of a weapon only if the People proved that he knew the knife he possessed had the characteristics of a gravity knife (A. 6-7, 515-16). Justice Goldberg rejected that request, and instructed the jury, consistent with People v. Berrier, 223 A.D.2d 456 (1st Dept. 1996): A person knowingly possesses a gravity knife when that person is aware that he is in possession of a knife. A person does not have to know that the knife is specifically a gravity knife or that it fits the legal description of a gravity knife in order to knowingly possess it. The People are only required to prove that the defendant, with respect to the knowledge element, knowingly possessed a knife. (Jury Charge: A. 573). Defendant contends that the trial court erred in instructing the jury with respect to mens rea that the People needed to prove only that defendant “knowingly possessed a knife.” In defendant’s view, principles of statutory construction and due process required the court to read a knowledge element into the gravity knife portion of the per se weapon possession statute (Defendant’s Brief [“DB”]: 24-30). Specifically, although defendant concedes that Penal Law § 265.01(1) on its face requires no proof -10- of a culpable mental state, he claims that Article 15 of the Penal Law and “this State’s case law interpreting § 265.01 over the last 100 years” require this Court to read a “knowingly” requirement into § 265.01(1) and to apply that requirement to the particular characteristics that made his knife a “gravity knife” (DB: 26-28). Moreover, according to defendant, dispensing with his proposed mens rea requirement would, in violation of due process, “criminaliz[e]” those, like him, who possess “a tool of everyday use” and use it for innocent purposes (DB: 29). Defendant’s contentions are without merit. A. Statutory construction and well-established precedent demonstrate that the People were required to prove only defendant’s knowing, voluntary possession of the knife, not that he knew the knife bore the characteristics of an illegal gravity knife. In construing a statute, a court’s “primary consideration” is “to ascertain and give effect to the intention of the Legislature.” People v. Santi, 3 N.Y.3d 234, 243 (2004) (internal quotations and citations omitted). Because “the clearest indicator of legislative intent is the statutory text,” a court’s “starting point” in construing a statute “must always be the language itself.” People v. Golo, __ N.Y.3d __, 2015 N.Y. LEXIS 3656, *4 (November 23, 2015), quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583 (1998) (internal quotations omitted). The interpreting court should give effect to the “plain meaning” of the statutory text, so long as it does not lead to an absurd or unintended result. Santi, 3 N.Y.3d at 242. -11- As defendant concedes (DB: 25), Penal Law § 265.01, the statute under consideration here, contains no express mens rea requirement. A person is guilty of third-degree criminal possession of a weapon when he “possesses any . . . gravity knife” (or other listed weapon) and has a prior conviction. Penal Law § 265.02(1) (incorporating by reference Penal Law § 265.01[1]). A gravity knife is a knife having “a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” Penal Law § 265.00(5). Section 265.01(1) does not, by its terms, require the possessor to know that the knife possessed is a gravity knife; in fact, the provision does not expressly mandate any mental state at all. That is not the end of the inquiry, however, for Article 15 of the Penal Law provides specific legislative directives as to statutory interpretation regarding mental culpability. In Penal Law § 15.10, addressing the “Requirements for Criminal Liability in General and for Offenses of Strict Liability and Mental Culpability,” the Legislature set forth the Penal Law’s minimum culpability requirement of a “voluntary act.” See Penal Law § 15.10. A “voluntary act” is defined to include “the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.” Penal Law § 15.00(2). The Legislature expressly provided in section 15.10 that an offense requiring no more culpable mental state than a voluntary act “is one of strict liability.” See Penal Law § 15.10. “Strict liability” does not necessarily mean that there is no mental state -12- applicable to any element of the particular offense. It simply means that at least one of the elements of that offense requires no culpable mental state. Id. As stated in the statute, “if an offense or some material element thereof does not require a culpable mental state . . . such offense is one of ‘strict liability.’” Id. (emphasis added). Accordingly, an ordinary possessory offense – requiring awareness of the physical possession of an object – that has at least one element requiring no culpable mental state is a strict liability offense. Such is the case with Penal Law § 265.01(1). Penal Law § 15.15 establishes the principles for the “Construction of Statutes with Respect to Culpability Requirements.” Penal Law § 15.15(1) provides that, when a statute explicitly includes one culpable mental state in the statutory text (namely: intentionally, knowingly, recklessly or criminally negligent), that mental state is presumed to apply to every element of the crime. Penal Law § 15.15(2) addresses situations where the statutory language does not expressly provide for any culpable mental state. Generally, such statutes, “unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.” However, the Penal Law does not automatically read a mens rea requirement into statutory silence. Rather, it directs courts to conduct a more subtle inquiry into the Legislature’s intention and to weigh the nature of the prohibited conduct to determine -13- whether any particular mens rea is mandated. See Penal Law § 15.15(2).9 Penal Law Article 15 thus plainly reveals that the Legislature intended to reserve to itself the power to designate some possessory crimes as strict liability offenses. The weapon- possession statute governing gravity knives falls squarely within that category. Interpreted in light of Penal Law Article 15, Penal Law Section 265.01(1) requires proof of the commission of the “voluntary act” of possessing a knife. See Penal Law § 15.00(2); see also People v. Cohen, 57 A.D.2d 790, 791 (1st Dept. 1977); People v. Davis, 112 Misc.2d 138, 140-141 (Crim. Ct. Bronx Co. 1981). Accordingly, as this Court observed in People v. Saunders, 85 N.Y.2d 339, 341-342 (1995), in connection with possession of a firearm, “the corpus delicti of weapons possession under Penal Law § 265.01(1) is the voluntary, aware act of the possession of a weapon, with the additional feature of operability of the firearm.” Thus, while it must be shown that a defendant charged with possession of a per se weapon had a not-necessarily-culpable awareness that he possessed an item of a general type, it is irrelevant whether he also had culpable knowledge of the “additional feature[s]” of the item that established criminal liability. 9 Notably, in determining whether the Legislature has evinced a clear intent for a statute to be one of strict liability, “there have been few, if any, statutory crimes for which the Legislature has expressly stated,” in the statutory text, “This is a statute of strict liability.” People v. Merriweather, 139 Misc.2d 1039, 1040-1041 (Dist. Ct. Nassau Co. 1988) (internal citations and quotations omitted). -14- Beyond the simple requirement of an aware, voluntary act of possession, however – and contrary to defendant’s claim that Article 15 “requires the possession to be a knowing and voluntary act” (DB: 25 [emphasis added]) – neither the Penal Law nor any controlling precedent incorporates any further knowledge requirement into the “per se” subdivisions of the weapon-possession statutes. To the contrary, this Court and lower courts have clearly recognized the “strict liability nature” of Penal Law § 265.01(1). Saunders, 85 N.Y.2d at 341; see also People v. Brannon, 16 N.Y.3d 596, 599 (2011) (“The Penal Law identifies gravity knives as per se weapons and criminalizes the mere possession of one.”) (citing Penal Law § 265.01[1]); People v. Marrero, 69 N.Y.2d 382, 386 (1987) (noting that “the weapons possession statute . . . imposes liability irrespective of one’s intent”); People v. Herbin, 86 A.D.3d 446, 447 (1st Dept. 2011) (upholding jury instruction that, to convict defendant of possessing gravity knife, jury “was required to find that he knew he possessed a knife, but did not have to know it was a gravity knife”); Matter of Michael Grudge M., 80 A.D.3d 614, 614- 15 (2nd Dept. 2011) (allegation that juvenile possessed a “gravity knife” did not require proof that “the possessor considered it a weapon”); People v. Miranda, 76 A.D.3d 466, 466 (1st Dept. 2010) (noting that defendant who had a gravity knife clipped to his pocket was properly arrested “for possessing a per se weapon”), aff’d, 19 N.Y.3d 912 (2012); People v. Berrier, 223 A.D.2d at 457 (“Knowledge that the thing possessed answers the description of one of the prohibited instruments is not an element of third-degree criminal possession of a weapon.”); People v. Messado, 49 -15- A.D.2d 560, 560 (1st Dept. 1975) (“[t]he language of the Penal Law [ ] does not require the People to prove mens rea as an element of the crime of possession of a weapon as a felony”); People v. Velasquez, 139 Misc.2d 822, 823 (Sup. Ct. N.Y. Co. 1988) (although “[a]t a minimum, conviction for possession of any weapon requires proof that the possession was knowing, in the sense that the defendant was aware that the proscribed object was on his person . . . New York courts . . . have generally declined to extend the knowledge requirement to the specific characteristics or nature of the weapon”); Davis, 112 Misc.2d at 139 (“[c]areful examination of section 265.01 of the Penal Law, and its six subdivisions, reveals a clear legislative intention to impose a standard of strict, or absolute, criminal liability”). The statutory text of other provisions in Article 265 underscores that the omission of a mens rea requirement in § 265.01(1) was intentional. See People v. Simon, 148 Misc.2d 845, 846 (Crim. Ct. Bronx Co. 1990) (noting that Penal Law § 265.01[1] “fails to allege a requirement of a culpable mental state” and that “[t]his omission is not a legislative error, but rather reflects the clear intent of the statutory scheme”). Most tellingly, the subsections immediately surrounding Penal Law § 265.01(1) impose explicit mens rea requirements for other possessory crimes. See Penal Law §§ 265.01(2) (possession “with intent to use”); 265.01(7) (“knowingly” possessing a “bullet containing an explosive substance designed to detonate upon impact”), 265.01(8) (possessing “armor piercing ammunition with intent to use”). So do other provisions within Article 265.00. See Penal Law §§ 265.01-a (“knowingly” possessing a rifle, -16- shotgun, or firearm on school grounds); 265.02(3) (“knowingly” possessing a defaced firearm), 265.06 (“knowingly” possessing designated weapons on school grounds), 265.14 (“knowingly” selling a firearm with the aid of a minor). Undoubtedly, the Legislature’s inclusion of an express knowledge or other mens rea requirement in certain subdivisions strongly suggests that the absence of such a requirement from other provisions was calculated to result in strict liability with respect to the distinguishing elements of those provisions. See Simon, 148 Misc.2d at 847 (the Legislature’s intent to make Penal Law § 265.01[1] a strict liability crime “is highlighted not only by the language of the subdivision which excludes a scienter requirement, but also by the clear inclusion of culpable mental states in subdivisions [2] and [3] of the same statute”);10 Davis, 112 Misc.2d at 139-140 (“[i]t would seem reasonable that if the Legislature had intended a culpable mental state or scienter to be a required element of subdivision [1] of section 265.01 of the Penal Law, it would have specifically included such element as it found necessary to do so with respect to subdivisions [2] and [3]”); see also People v. Ansane, 96 A.D.2d 96, 97 (4th Dept. 1983) (noting that People need not prove defendant’s knowledge of operability of firearm because “[t]he plain language of subdivision [4] of section 265.02 does not require the proving of any such element, and the other language contained in section 265.02 10 The Legislature recently amended Penal Law § 265.01 by removing subsection (3), which prohibits the knowing possession of rifles, shotguns, and firearms on school grounds, from this list of misdemeanor fourth-degree possession offenses, and designating it a felony offense under § 265.01-a. See L. 2013, ch. 1 §§ 40-41 (eff. March 16, 2013). -17- demonstrates the absence of an intention that knowledge of operability should be an element of subdivision [4] [contrast subdivision [3] where the word ‘knowingly’ is employed and see various other sections of article 265 where knowledge or intention are made elements]”); cf. Velasquez, 139 Misc.2d at 824 (for Penal Law § 265.02[3], which prohibits knowing possession of a defaced firearm, a review of “[t]he statute’s legislative history confirms that the inclusion of the word ‘knowingly’ was not inadvertent,” but rather reflected the specific intent of the Legislature, which was to require the People to prove “defendant’s specific knowledge of a gun’s defacement”). In short, the language of both Penal Law Articles 15 and 265, and of section 265.01(1) in particular, demonstrates that Criminal Possession of a Weapon under subdivision 265.01(1) is a strict liability offense. And, in accordance with that clear language, the courts of this state have consistently recognized that the aware and voluntary possession of a knife that has the characteristics of a prohibited per se weapon subjects the possessor to criminal liability regardless of his specific mental state with respect to those characteristics. Given that the plain meaning of the language of the statute in question is clear, a resort to extrinsic aids to interpretation is neither necessary nor proper. See McKinney’s Cons. Laws of N.Y., Book 1, Statutes §§ 76, 120; Giblin v. Nassau County Med. Center, 61 N.Y.2d 67, 74 (1984); People v. Graham, 55 N.Y.2d 144, 151 (1982). But even if consideration of such information were proper, the legislative history of both Penal Law Article 15 and Section 265.01(1) would confirm that the Legislature -18- specifically intended not only to reserve to itself the power to designate some possessory offenses as strict liability offenses, but also to make the possession of gravity knives such a strict liability offense. First, in shaping the Penal Law’s culpability provisions in 1965, the Legislature looked for general guidance to the 1962 Model Penal Code (“MPC”). See Denzer and McQuillan, Practice Commentary to Penal Law § 15.00 et. seq., Book 39 at 19 (1967). The Legislature did not adopt the MPC wholesale, however, and the exclusions are telling. For one, the authors of the Penal Law chose not to adopt the MPC’s “Minimum Requirements of Culpability,” which provide that “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” See Model Penal Code § 2.02(1). The MPC does allow for some offenses of “absolute liability,” but no such offense may be punished as more than a violation. See Model Penal Code § 2.05(1)(a); see also Model Penal Code § 2.05, “Explanatory Note.” Not surprisingly, the comments to § 2.05 proclaim that “[t]his section makes a frontal attack on absolute or strict liability in the penal law, whenever the offense carries a possibility of sentence of imprisonment.” Model Penal Code § 2.05 cmt. 1. -19- The New York Legislature plainly did not embrace the hostility to strict liability embodied in MPC sections 2.02(1), 2.02(3), and 2.05.11 Rejecting those model provisions altogether, the Legislature instead fixed the Penal Law’s minimum culpability requirement as the voluntary act and expressly recognized that an offense requiring no more culpable mental state than a voluntary act “is one of strict liability.” See Penal Law § 15.10. Similarly, where the MPC would automatically interpolate a mens rea requirement into statutory silence, the Penal Law instead directs courts, as noted above, to conduct an inquiry into the Legislature’s intention, and to weigh the nature of the prohibited conduct. See Penal Law § 15.15(2). Perhaps most significantly, the New York Legislature rejected each and every component of the MPC’s section 2.05, which, as described above, imposed rigid limitations on the legislative use of strict liability. This is a clear and unequivocal manifestation of the Legislature’s intention to retain the power to impose strict liability, and further, to confine interpretation of the Penal Law’s culpability requirements to the specific terms of Article 15. The history of section 265.01(1) in particular confirms the Legislature’s intention to hold a person strictly liable for possessing any of the listed weapons, including a gravity knife. Since 1909, the New York State Legislature has defined 11 New York was hardly alone in rejecting the MPC’s stance on strict liability. As commentators have noted, despite widespread adoption of most MPC provisions, “strict liability offenses carrying the possibility of imprisonment still exist in most jurisdictions.” See Model Penal Code and Commentaries, § 2.05 cmt. 1. -20- certain items as per se weapons, illegal to possess regardless of the possessor’s intent in carrying them. United States v. Irizarry, 509 F. Supp. 2d 198, 206 (E.D.N.Y. 2007) (citing New York State Statutes, Article 172 § 1897 [1909]). In 1954, the switchblade – defined 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” – was added to this list. L. 1954, ch. 268 § 1. That law contained an exception for craftsmen who possessed a switchblade “for purposes of business, trade or profession, or for use while hunting, trapping and fishing.” Id. Two years later, however, the Legislature eliminated that exception, thus making switchblade possession illegal under any circumstance, even if it were used for the possessor’s employment. L. 1956, ch 587 § 1. The legislative commentary noted that enforcement of the 1954 statute had been “made difficult” because the “purposes of business” defense had been raised frequently and went “far toward vitiating the statute.” New York State Legislative Annual, p. 21 (1956). As an example, the commentary cited a specific, unreported case in which the defendant had been acquitted based on his defense that he “worked for a florist and a knife of some type was necessary in the course of that work,” although his employer and other employees used “ordinary clasp knives.” New York State Legislative Annual, p. 21 (1956) (emphasis in original). The court in that case had noted that it could not imagine a single “business, trade, or profession” in which a switchblade knife was required, rather than any clasp or other straight knife. Id. Therefore, according to the -21- court, to read the statute as conferring a defense only when a switchblade knife – not another type of knife – was necessary to the occupation “would be to effectively excise this phrase from the statute.” Id. The court held that it had no right to excise the phrase – doing so was a legislative matter – but, to give the clause any meaning, “it had to be read as affording a defense if any type of knife were necessary to the occupation.” Id. (emphasis in original). The legislative commentary noted that the defense had come close to rendering the statute toothless because of the “large number of occupations which embrace some use for some kind of a knife, even if the use is as basic as cutting string, sharpening pencils, or opening cartons.” New York State Legislative Annual, p. 21 (1956). The defense was repealed because it permitted to escape liability those whose professions did not require the use of dangerous switchblades, but who were using them anyway. Its repeal was intended to address the “continued hazard” posed by switchblades. Id. at 22. Subsequent efforts to modify the defense were aborted. Id. In the years that followed, the gravity knife – a “slightly different weapon” – became prevalent, especially in New York City. Irizarry, 509 F. Supp. 2d at 206. While a switchblade “has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife,” id., a gravity knife’s “blade leaps out with [only] a flip of the wrist,” thus “circumvent[ing] the law on switchblade knives” since “[t]here is no button needed to open it.” Emma Harrison, Group Seeks Ban on Gravity Knife, New York Times (Dec. 19, 1957). -22- In 1958, the Legislature responded by adding gravity knives to the per se weapons list and criminalizing their sale and possession. L. 1958, ch. 107 § 1. In supporting passage of that law, the New York Police Department labeled gravity knives “inherently dangerous” and noted that its experience “indicate[d] that gravity knives [were] being used increasingly as weapons in the perpetration of such crimes as homicide, assault, rape, and robbery.” Bill Jacket, L. 1958 ch. 107, dated January 9, 1958, at 15-16.12 This history plainly indicates that the Legislature determined that the weapons included in Penal Law § 265.01(1), including gravity knives, were inherently dangerous and thus designated them per se illegal to possess. Moreover, perhaps because of the considerations informing the repeal of the “purposes of business” exception to the switchblade prohibition just two years earlier, no such exception was provided in the new gravity knife law. Even in the face of clear statutory text and legislative history, defendant nonetheless maintains that the omission of a mens rea element was unintentional, claiming that the absence was the merely the result of “drafting history, not legislative design” (DB: 26). This assertion wholly misses the mark. As just demonstrated, the statutory text and legislative history of Penal Law § 265.01(1) reveal the “[p]recise, 12 Similarly, the legislative history of the federal statute banning switchblades and gravity knives, which was passed that same year, describes the gravity knife as being “[e]very bit as fast as the switchblade” and “as effective a killer.” Switchblade Knives: Hearing Before a Subcommittee of the Committee on Interstate and Foreign Commerce, House of Rep., 85th Cong., 2d Sess. 13, 29 (1958). -23- thoughtful and thorough planning” which “must have been involved in the drafting of this legislation.” People v. Mott, 137 Misc.2d 757, 759 (Jefferson Co. Dec. 16, 1987); see also People v. Dolson, 142 Misc.2d 779, 781 (Onondaga Co. 1989) (“the Legislature took pains to describe and outlaw certain weapons whose potential for quick deployment make them per se too dangerous to possess”). And, in crafting Article 15 of the Penal Law, the Legislature made a conscious decision to reject those portions of the MPC that prohibited the designation of certain offenses as strict liability offenses. Significantly, “the legislature has on numerous occasions amended the law to include additional weapons” as per se weapons. Mott, 137 Misc.2d at 759; see also DB: 27 (acknowledging numerous amendments to the statute). Had the Legislature meant for a specific mental state to be required, it could easily have incorporated it into the statute on any of those occasions. Indeed, even if it had otherwise adopted the statute “verbatim” from the former Penal Law (DB: 25-26 [citing Donnino, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 39, Penal Law 265, Firearms and other Dangerous Weapons, at 408]), the Legislature could have amended the statute to include a specific mens rea. Considering the well-established precedent, set forth above, holding § 265.01(1) to be a strict liability statute and gravity knives to be per se illegal weapons, the Legislature’s inaction speaks volumes. See McKinney’s Cons. Laws of N.Y., Book 1, Statutes, § 191, at comment (“The Legislature will be assumed -24- to have known of existing statutes and judicial decisions in enacting amendatory legislation”).13 As defendant notes (DB: 32 n.8), the Legislature has recently considered multiple amendments to the Penal Law affecting the prohibition against possession of gravity knives. One such amendment would have provided an affirmative defense for a defendant who could establish that he did not intend to use the knife unlawfully. See S5650-2013/A7177, introduced by the Office of Court Administration and sponsored by Senate Rules Committee and Assemblyman Joseph Lentol, respectively; see also http://open.nysenate.gov/legislation/bill/S5650-2013. Another proposed bill, which remains currently pending before the Legislature, seeks to move “gravity knife” from subsection (1) of § 265.01 to subsection (2), which requires proof of intent to use unlawfully. See A4821-2015/S3675-2015, sponsored by Assemblyman Dan Quart and Senator Diane Savino, respectively; see also http://www.nysenate.gov/legislation/bills/2015/S3675. In noting these pending proposed amendments (DB: 32 n.8), and in providing a sampling of other jurisdictions’ legislative enactments that require proof of an unlawful purpose in the possession of a gravity knife (DB: 34 n.11), defendant does 13 It bears noting that defendant relies upon the same canon of statutory construction to assert that the Legislature’s “failure to eliminate the judicially recognized mens rea requirement is strong evidence that it accepts that element” (DB: 27). But, as discussed infra, defendant’s historical argument of a well-established mens rea requirement in Penal Law § 265.01(1) is premised on a misreading of cited precedent (DB: 26) (citing, inter alia, People v. Persce, 204 N.Y. 397, 402 [1912]). -25- not appear to dispute that such fine-tuning of a gravity knife prohibition is the province of the Legislature. Indeed, it would be particularly inappropriate for this Court to alter the statutory scheme governing all per se weapons with the blunt instrument of creative statutory construction when the Legislature is demonstrably quite able to consider measures that are more precisely calibrated to address any perceived shortcoming relating specifically to the existing gravity knife laws. See People v. Durant, __ N.Y.3d __, 2015 N.Y. LEXIS 3661, *21-23 (November 23, 2015) (recognizing superior ability of Legislature to “craft legal principles” that “realize all of the benefits, and none of the drawbacks, of defendant’s proposed judicial rule- making”); People v. Daly, 33 Misc.3d 963, 969 (Crim. Ct. N.Y. Co. 2011) (noting that “[t]his court may not substitute its view of the criminality of possession of [a gravity] knife for that of the Legislature,” and that any attempt to amend the law with respect to a gravity knife “properly should be addressed to that branch of government”). Importantly, deference to the Legislature is especially appropriate here, where judicial addition of a mens rea requirement to section 265.01(1) would alter the legislative scheme with respect to possession of each of the weapons listed in section 265.01(1): “any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or ‘Kung Fu star.’” This Court should decline defendant’s -26- invitation to pre-empt appropriate legislative activity by ruling that a new mens rea element applies to section 265.01(1). Taking another tack, defendant maintains that over “100 years” of New York case law has read a “knowingly” element into Penal Law § 265.01 as the applicable mental state with respect to all elements of the crime by “requir[ing] possession to be both knowing and voluntary” (DB: 26 [citing, e.g., People v. Persce, 204 N.Y. 397 (1912); People v. Visarities, 220 A.D. 657 (1st Dept. 1927)]). Defendant’s reliance on this case law is misplaced. In Persce, this Court held that a conviction for criminal weapon possession under former Penal Law § 1897 required proof of “knowing and voluntary” possession; the First Department decided similarly in Visarities that mere possession of the prohibited weapon, “known and voluntary,” was illegal under that statute. Persce, 204 N.Y. at 402; Visarities, 220 A.D. at 658. But both Persce and Visarities were decided decades before the New York Legislature’s enactment of Penal Law Article 15 and its designation of “knowingly” as a term of art denoting a defined culpable mental state. Penal Law § 15.05(2). Those courts simply used “knowing” as a synonym for what Penal Law § 15.00(2) now refers to as “awareness” of possession, which is not one of the defined culpable mental states. Thus, the Persce and Visarities courts’ reading of the then-existing statutory scheme reflected exactly the same understanding of the weapon-possession prohibition as that of the trial court below in construing Penal Law § 256.01(1) and Article 15. -27- At issue in People v. Cohen, 57 A.D.2d 790 (1st Dept. 1977), also cited by defendant (DB: 27), was the trial court’s instruction to the jury that the People, in support of a charge under Penal Law § 265.02, did not have to prove that defendant had “any knowledge that he [was] carrying the firearm.” 57 A.D.2d at 791. Unsurprisingly, the Appellate Division reversed the conviction on the ground that the court’s charge abrogated the People’s burden of proving a voluntary act as defined by Penal Law § 15.00(2). Id. But that decision merely enforced the Penal Law’s minimum requirement for criminal culpability – awareness as part of the voluntary act of possession – without requiring any proof that defendant had culpable knowledge that the object he possessed met the specific statutory definition of a firearm. As noted above, the jury instruction in the present case was completely consistent with Cohen. In People v. Ford, 66 N.Y.2d 428 (1985) (DB: 26-27), this Court made a passing reference to “knowing” possession, with a citation to Cohen. Ford, 66 N.Y.2d at 440 (“[p]ossession third requires only that defendant’s possession be knowing”). But, as just discussed, Cohen addressed the issue of awareness under Penal Law section 15.00(2), not the culpable mental state of “knowing” set forth in section 15.05(2), much less whether that culpable mental state would apply to the aggravating circumstance that the weapon possessed in this case met the statutory definition of a gravity knife. This Court subsequently acknowledged in Saunders, also cited by defendant (DB: 30), that Penal Law § 15.00(2) is the controlling provision, noting that “‘[p]ossession,’ as part of the forbidden act, includes the Penal Law definitional -28- component of ‘voluntary act,’ which incorporates the attribute of awareness of the possession or control.” 85 N.Y.2d at 341 (quoting Penal Law § 15.00[2]). Thus, the Saunders Court explained, “the corpus delicti of weapons possession under Penal Law § 265.01(1) is the voluntary, aware act of the possession of a weapon.” Id. (emphasis added). Accordingly, defendant falls woefully short in his effort to demonstrate a “judicially recognized mens rea requirement” mandating proof of a defendant’s knowledge that the object he possesses meets the specific statutory definition of a per se weapon (DB: 27).14 B. The imposition of strict liability under Penal Law § 265.01(1) comports with principles of due process. In addition to his arguments regarding statutory construction, defendant also argues that, unless the culpable mental state of “knowingly” is read into every element of Penal Law § 265.01(1), the statute could, in violation of the right to due process, render criminal those persons who, like him, “possessed the knife for innocent purposes” (DB: 33). However, the imposition of strict liability in this case not only faithfully adheres to New York’s statutory scheme, it also comports fully with the requirements of due process. 14 Defendant’s reliance on the model jury instruction for possession of a per se weapon (DB: 27) is also misplaced, for the pattern charge is based on a misreading of precedent and also erroneously conflates the Penal Law’s requirement of “awareness” of the possessory act with culpable “knowledge” of the nature and capabilities of the object possessed. See C.J.I.2d [N.Y.] Penal Law § 265.01(1) (“a person is guilty of criminal possession of a weapon [ ] when that person knowingly possesses [a per se weapon]”). -29- It has been consistently recognized that a legislature may, through criminal statutes, protect public safety and welfare without regard to mental culpability. See United States v. Freed, 401 U.S. 601, 607 (1971); Morissette v. United States, 342 U.S. 246, 254 (1952); United States v. Balint, 258 U.S. 250, 251-252 (1922); see also Davis, 112 Misc.2d at 140. Such “public welfare offenses,” even though imposing strict liability, do not violate the due process clause. See Balint, 258 U.S. at 252 (state may punish certain acts without regard to the actor’s intent or knowledge). Public welfare offenses have several distinct characteristics. First, they typically regulate “potentially harmful or injurious items” in the broad interest of protecting public safety. See Staples v. United States, 511 U.S. 600, 607 (1994); Morissette, 342 U.S. at 255. The conduct targeted by such statutes need not be immediate, and often “merely create[s] the danger or probability” of later harm; thus, “whatever the intent of the violator, the injury is the same.” Morissette, 342 U.S. at 256. Moreover, the violator stands in the best position to prevent the harm, simply by exercising reasonable care. Id. at 256-257; Balint, 258 U.S. at 254; see also Freed, 401 U.S. at 609-610. Additionally, public welfare statutes generally impose only “light penalties” such as fines or short periods of incarceration, and convictions for violations of such statutes entail relatively little social stigma. See Staples, 511 U.S. at 616-617; Morissette, 342 U.S. at 256. Finally, in choosing to dispense with a mens rea requirement for a public welfare offense, a legislature may consider the difficulty anticipated in proving guilty knowledge in prosecutions under the statute. See Balint, 258 U.S. at 252. In that -30- regard, where the item or conduct the legislature seeks to regulate is widespread, the inherent difficulty in establishing mens rea in numerous prosecutions under the statute may further justify the imposition of strict liability. See Balint, 258 U.S. at 251-252; Morissette, 342 U.S. at 253-254. An examination of these factors plainly reveals that the prohibition against the possession of a gravity knife provided in Penal Law § 265.01(1) is just such a public welfare statute. As discussed above, historical context strongly suggests that the Legislature acted to ban gravity knives largely because their proliferation presented an imminent danger to the public. See Saunders, 85 N.Y.2d at 343 (noting that the possession laws reflected “the legislative policies specifically targeting weapons possession crimes and seeking to prophylactically intercept the possession and use of weapons in an inordinately armed society”); Irizarry, 509 F. Supp. 2d 198 at 206-207. As is common in public welfare offenses, the widespread possession of gravity knives generally increased the likelihood of injury to the public, and thus the danger remained equally grave whether or not the possession was knowing or intentional. Moreover, the Legislature likely foresaw the fundamental difficulties of proving guilty knowledge in conjunction with the possession of gravity knives. See People v. Wood, 58 A.D.3d 242, 246 (1st Dept. 2008) (emphasizing that the weapon-possession statute carries the indicia of a public welfare offense, including its “potential for difficulty in proving guilty knowledge under the statute” and “relatively light penalty”). Indeed, were the Penal Law to require proof that a defendant knew the -31- exact characteristics of the object he possessed for criminal liability to attach, the accused defendant would need only claim ignorance to effectively evade prosecution, because such a claim would so often be a plausible one. Absent eyewitness testimony as to a defendant’s handling of the knife on a prior occasion, revealing knowledge of its prohibited function, or the defendant’s own admission of such knowledge, the prosecution would be unable to meet its burden in all but the most unusual cases. See People v. Gordon, 23 N.Y.3d 643, 651 (2014) (“We see no basis for interpreting the law in a way that rewards criminal conduct, or places an insurmountable burden on the People.”). In contrast, a person possessing a gravity knife is in the best position to avert any harm and, in exercising “no more care than society might reasonably expect,” can readily ascertain the nature of the object he physically possesses. Morissette, 342 U.S. at 256-257. For example, here, defendant claimed that he had bought his knife in 2009 for his then-current job “working construction” and had been using it to install floor tiles in an apartment just before he was arrested (Parrilla: A. 453, 456-57, 491-93). The regular use of this knife for a variety of purposes obviously provided ample opportunity for defendant to discern the properties and function of the knife. And it certainly should have put a minimally observant defendant “who assumed his responsibilities” on notice that he possessed a knife that could be opened in the prohibited fashion. Morissette, 342 U.S. at 256. Thus, the Legislature was justified in requiring “a degree of diligence for the protection of the public,” id. at 257, and in -32- deciding to place the onus on the possessor of a gravity knife to be aware of the dangerous characteristics of the knife. See Balint, 258 U.S. at 254 (in enacting Anti- Narcotic Act, “Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided”). Significantly, possession of a per se weapon under Penal Law § 265.01(1) is only a class A misdemeanor, under which violators are subject to a prison sentence of not more than one year. See Penal Law § 70.15(1); see also Staples, 511 U.S. at 616-18 (noting that Legislature could not have intended to designate as a public welfare offense a felony punishable by up to 10 years’ imprisonment). To be sure, here, defendant received an indeterminate prison sentence of from two-and-one-half to five years. But that was because a prior conviction – he had been convicted of two felonies and a misdemeanor – elevated the crime from a misdemeanor to a felony. See Penal Law § 265.02(1). The specific conduct for which defendant was convicted, the possession of a gravity knife, could have resulted in a prison sentence of no more than one year in the absence of such a prior criminal record; that his recidivism warranted additional punishment says nothing about the provision’s validity as a public welfare statute. See Penal Law §§ 70.06, 265.02(1).15 15 Notably, as Judge Friedmann observed in People v. Davis, 112 Misc.2d 138, 141 (Crim. Ct. Bronx Co. 1981), the theoretical rigidity of strict liability may also be mitigated in practice. Thus, prosecutors may exercise discretion in charging crimes under Article 265’s -33- (Continued…) The presence of these factors distinguishes the instant case from Staples, upon which defendant relies (DB: 28-29). In Staples, the defendant was convicted under the National Firearms Act (“NFA”) for possessing an unregistered machine gun, in the form of a semiautomatic rifle that had been modified to be capable of fully automatic fire. Defendant asserted that his “alleged ignorance” of any automatic firing capacity “should have shielded him from criminal liability.” 511 U.S. at 603. The Supreme Court, in reversing defendant’s conviction, ultimately decided that the NFA should not be treated as a public welfare offense, and found an implicit mens rea element in the statute. See id. at 619. Significantly, the Staples court was unable to find any evidence of legislative intent to criminalize possession of automatic firearms without proof of mens rea. In the absence of “some indication of congressional intent, express or implied,” the Staples court regarded itself as bound under common law principles to require proof of mens rea to establish an offense. Staples, 511 U.S. at 605-06. In contrast, as discussed in detail above, the New York Legislature was quite clear in both its rejection of the common law rule as a general matter and its determination not to require proof of strict liability provisions, and, in the event of “abusive” prosecutions (see DB: 35-36), a defendant’s interests may also be protected by the exercise of judicial discretion. As the Davis court noted, “when sympathetic or mitigating circumstances are supported by the evidence,” the trial judge may elect, “in the interests of justice,” to dismiss the information or indictment. 112 Misc.2d at 141. See also CPL §§ 170.40, 210.40. The trial court may also choose to blunt the force of a strict liability statute by exercising the sentencing discretion available under the Criminal Procedure Law. See Davis, 112 Misc.2d at 141; CPL Article 370. -34- ______________________ (…Continued) mens rea to establish a defendant’s guilt of possession of a per se weapon, including a gravity knife, under Penal Law § 265.01(1). Also in contrast to New York’s gravity knife law, the NFA imposes an affirmative registration requirement on persons whose gun ownership is otherwise lawful. The Staples court found that imposition fundamentally inequitable because, in a country where gun ownership is presumed to be lawful, nothing would alert a person to the possibility of regulation. 511 U.S. at 614. Read literally to impose strict liability, the NFA would punish not the voluntary act of possession, but rather a passive omission: the failure to register. See id. at 603. The Supreme Court, well prior to Staples, had already rejected the notion that an affirmative duty to act may be imposed on a citizen who has no reason to suspect his behavior is subject to regulation. See Lambert v. California, 355 U.S. 225, 229-230 (1957).16 The Court’s decision in Staples also rested in part on the fact that the statute could impose steep penalties – up to 10 years’ imprisonment – on violators. See Staples, 511 U.S. at 610, 615. Finally, the Court in Staples stressed that its holding was a “narrow one” dictated by a “commonsense 16 Importantly, Lambert arrived at no broad conclusion concerning the constitutionality of strict liability statutes. Indeed, the Court pointedly observed that “[w]e do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient.” 355 U.S. at 228. The Staples court similarly restricted the application of its “narrow” holding. See 511 U.S. at 619-620 (noting that the Court, like others before it “attempt[s] no definition” of “crimes that require a mental element and crimes that do not”). -35- evaluation of the nature of the particular device” subjected to congressional regulation. Id. at 619. The present case is thus readily distinguishable from Staples. As shown above, the language and legislative history of Penal Law Articles 15 and 265 plainly indicate that § 265.01(1) is a public welfare offense that may, consistently with due process, involve strict liability. See Balint, 258 U.S. at 252-254; see also People v. Voltaire, 18 Misc. 3d 408, 412 (Crim. Ct. N.Y. Co. 2007). And the Staples Court reaffirmed that the omission of a mens rea requirement is permissible in connection with public welfare offenses. Staples, 511 U.S. at 606-07. In notable contrast with the NFA, the weapon possession offense defined by Penal Law § 265.01(1) does not impose an affirmative duty such as that invalidated by Lambert, nor does it punish a passive failure to act in violation of Staples. Instead, the provision imposes strict liability for the possession of an item that the Legislature had properly determined to be inherently dangerous. And in contrast to the decade-long sentence provided for violation of the federal statute, first-time gravity knife offenders face a maximum one-year term. See Penal Law § 70.15(1). Thus Staples simply does not constitute a valid basis upon which to fundamentally alter New York’s weapon possession statutes. Defendant claims that the Legislature could not have meant for § 265.01(1) to reach common utility tools like the one he had in his possession, for such utility knives were “neither designed nor manufactured as gravity knives,” they are not “outwardly foul” but are, instead, used “for innocent purposes” such as “cutting sheet -36- rock,” “carpeting,” and “window screens,” and they are widely used, having been “legally” sold in stores until 2010 (DB: 30-34) (citation and internal quotations omitted).17 These claims do not withstand scrutiny. Defendant misses the mark in arguing that only those objects that are “outwardly ‘foul’” and have hardly any legitimate uses as a matter of law should be deemed per se weapons, the mere possession of which is criminalized (DB: 29-30 [citing Persce, 204 N.Y. at 402; Visarities, 220 A.D. at 658; and People v. Small, 157 Misc. 2d 673 (Sup. Ct. N.Y. Co. 1983)]). The Legislature included gravity knives in the per se portion of the weapon-possession statute because it determined that gravity knives, like the other instruments named in that statute, were inherently dangerous. Indeed, the Legislature recognized that gravity knives “contained the same basic characteristics as the switchblade” – which had been banned earlier – yet “circumvented the law because of the manner in which the blade was deployed.” 17 Although defendant repeatedly contends that he “legally” purchased his razor knife knife in 2009 (DB: 3, 23, 34), there is no basis in the record for such a contention. Defendant testified that he never tried to flick open the knife the way that Officer Hillman had done in court (Parrilla: A. 483), and he did not testify regarding whether, at the time of his purchase, the razor knife opened and locked into position by the use of gravity or centrifugal force. If it did, then the knife clearly fit the definition of a prohibited per se weapon and could not have been purchased “legally.” If the knife did not operate in the prohibited fashion at that time, it may have been “legally” purchased, but that would have no proper bearing on defendant’s guilt, for it was obviously an illegal gravity knife at the time of its recovery, either because the tension on the pivot screw had loosened over time or because defendant had purposely adjusted it. See http://www.ehow.com/how_7190380_loosen-pivot-screw-knife.html (last accessed November 23, 2015). In any event, it bears repeating that there is no basis in the record for defendant’s assertion that the gravity knife in defendant’s possession was “legally” purchased or sold in 2009. -37- Irizarry, 509 F. Supp. 2d 198, 206-07 (citing Harrison, Group Seeks Ban on Gravity Knife). And the Legislature defined a “gravity knife” based only on how it functioned, not its outward appearance or design. Penal Law § 265.00(5). Thus, the Legislature added gravity knives to the list of per se weapons because their ability to be deployed quickly with one hand into a locked position meant that they posed the same danger as switchblades. L. 1958, ch. 107 § 1; see also Bill Jacket, L. 1958, ch. 107, dated January 9, 1958, at 15-16. The knife possessed by defendant posed exactly the type of danger that led the Legislature to classify it as a per se weapon.18 See People v. Polk, 166 A.D.2d 177, 178 (1st Dept. 1990) (“a gravity knife . . . is, of course, a weapon per se” and “has no legitimate use as a matter of law”); see also People v. Ramos, 193 Misc.2d 564, 568 (Crim. Ct. Bronx Co. 2002) (“a metal pipe is not a per se weapon – such as a gun or a gravity knife – the mere possession of which without more is a crime”). Although a person might have a legitimate reason to possess a sharp knife of some sort that can be placed easily into a pocket or tool box, there is no legitimate reason that such a knife should need to open into a locked position using only gravity 18 Defendant asserts that the knife recovered from him “does not obviously operate as a gravity knife,” because “even Officer Hillman…could not get it to flick out on the first try” (DB: 33 n.10). But even if a gravity knife “could not be shown to lock in place by a flick on every try, that would not negate operability under P[enal] L[aw] § 265.00(5).” People v. Daly, 33 Misc. 3d 963, 967 n.3 (Crim. Ct. N.Y. Co. 2011) (citing, inter alia, People v. Smith, 309 A.D.2d 608, 609 [1st Dept. 2003] [affirming conviction where, unlike the instant case, the gravity knife “malfunctioned” on some of officer’s attempts to operate it in open court]); see also People v. Cavines, 70 N.Y.2d 882 (1987) (fact that handgun misfired once during operability test did not negate proof of operability). -38- or centrifugal force.19 Put another way, while a gravity knife – or even a switchblade or other per se knife – may be capable of being used for legitimate innocent purposes such as cutting sheet rock and carpeting, it is never necessary to use such an unduly dangerous knife for these purposes.20 And it is therefore no less reasonable to prohibit the cutting of sheet rock or carpet with a gravity knife than with a switchblade or any other per se bladed weapon. 19 The sharp blade of a razor knife is capable, in and of itself, of causing serious physical injury, and the danger is undoubtedly increased by the aggravating factor of such a blade opening and locking into place upon the mere use of gravity or centrifugal force. See, e.g., People v. Catala, 44 A.D.3d 388, 388-89 (1st Dept. 2007) (upholding conviction of second-degree gang assault where, inter alia, police officer observed defendant in possession of knife or box cutter shortly after assault); People v. Diaz, 21 A.D.3d 58 (1st Dept. 2005) (sufficient evidence of first-degree gang assault where defendant and others slashed victim with box cutter); People v. Walos, 229 A.D.2d 953 (4th Dept. 1996) (sufficient evidence that victim sustained serious physical injury as a result of defendant’s actions in slashing face, thigh and back with box cutter); see also People v. Brown, 100 A.D.3d 1035 (3rd Dept. 2012) (the “utility knife” used as part of defendant’s “employment” caused cut “12 inches long and up to three inches deep”; although evidence was insufficient to prove serious physical injury, it established the intent to inflict such injury and supported conviction for attempted first- degree assault); People v. Thompson, 245 A.D.2d 321 (2nd Dept. 1997) (no reasonable view of evidence that defendant caused merely physical injury, not serious physical injury, when he slashed victim in hand with a box cutter, resulting in a “permanent loss of function”); accord People v. Lawrence, 256 A.D.2d 358 (2nd Dept. 1998). 20 Defendant and Judge Weinstein thus manifestly err in asserting that numerous workers are “required” to carry knives that fall within the Penal Law definition of gravity knives “in order to earn a living” (DB: 32-33 [quoting Irizarry, 509 F. Supp. 2d at 209]). It bears noting that, although defendant claims that “[n]obody disputes that [he] possessed the knife for innocent purposes” (DB: 33), this claim is disingenuous and ignores the salient fact that the People had no occasion to either prove or dispute the reasons for defendant’s possession of a per se weapon; proof of his aware and voluntary possession and the operability of the knife as a gravity knife sufficed. See Saunders, 85 N.Y.2d at 341-342 (“the corpus delicti of weapons possession under Penal Law § 265.01(1) is the voluntary, aware act of the possession of a weapon, with the additional feature of operability of the firearm”). -39- Indeed, as discussed above, although the Legislature initially carved out an exemption for the use of switchblades for the “purposes of business, trade or profession,” L. 1954, ch. 268 § 1, it very quickly realized the unworkability of such an exemption, eliminating it within two years, L. 1956, ch 587 § 1. That is because an increasingly large number of defendants had attempted, just as defendant is attempting here, to evade conviction by arguing that they had used switchblades in their occupations, even when their jobs did not require the use of such dangerous knives and could have been performed through the use of other knives that were not per se dangerous weapons. See New York State Legislative Annual (1956) at 21-22. To now permit defendant to raise a defense that earlier had gone “far toward vitiating the [strict liability weapon-possession] statute,” id. at 21, would be to intentionally embrace the same unintended, but deleterious, result of the switchblade exemption: evasion of liability by those defendants whose professions did not require the use of inherently dangerous gravity knives, but who chose to use them anyway. In that regard, defendant can find no solace in People v. Munoz, 9 N.Y.2d 51, 54- 55 (1961) (DB: 29). In Munoz, this Court invalidated a law making it a crime for any person under twenty-one to possess “any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.” 9 N.Y.2d at 54-55. That overly broad language, the Court found, covered innocuous items such as “knitting needles” or a “fountain pen.” Id. at 56-57. In stark contrast to that law, and its overbreadth in reaching harmless and quotidian objects, Penal Law § 265.01(1) covers only those -40- items that, given their historical use, the Legislature has found to be inherently dangerous. Defendant fares no better relying on Irizarry, the only case he advances as supporting precedent that actually addresses a gravity knife. First, Irizarry is a federal non-habeas proceeding simply discussing New York State law; as such, it is not precedent that is binding upon this Court. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 58 n. 14 (2nd Cir. 2003). Moreover, as defendant implicitly acknowledges (DB: 32- 33), Irizarry did not address the issue presented in this case, i.e., what mens rea is required to prove possession of a gravity knife under Penal Law §§ 265.01(1), 265.02(1). Rather, that case dealt solely with whether, on the facts, the police officer had reasonable suspicion that a crime was being committed, thus justifying his stop and frisk of the defendant. Irizarry, 509 F. Supp. 2d at 210. To be sure, Judge Weinstein went further and opined in dicta that the Legislature’s intent in enacting the gravity knife statute was “to ban only those items that are manufactured as weapons,” not those used by workers as common tools. Irizarry, 509 F. Supp. 2d at 209. But neither the statutory text, the legislative history extensively cited in the decision, nor any New York State case interpreting the statute requires a knife to have been designed and manufactured specifically to be a gravity knife in order to fall within the statutory prohibition. As stated above, the Penal Law defines “gravity knife” based only on how the knife operates, making no mention of how the knife was designed or manufactured. See Penal Law § 265.00(5); see also -41- Dolson, 142 Misc. 2d at 780 (noting that a knife met one characteristic of a gravity knife, in that it opened by centrifugal force “although it is difficult to say whether this was possible when it was new, or whether by alteration or use this has become possible”). Thus, to the extent that Judge Weinstein’s opinion in Irizarry was meant, as defendant claims, to distinguish prohibited gravity knives from knives that, although technically fitting the characteristics of a gravity knife, were not manufactured as weapons and, instead, regularly used as tools (DB: 33-34), that interpretation is flatly at odds with the statutory text, the legislative history and well-established precedent. Finally, that various models of “Husky” brand knives may have been widely sold at the time defendant says he purchased his knife (DB: 31-32) in no way disestablishes its inherent dangerousness or undermines its illegality. Although defendant proclaims the wide possession and use of Husky knives (DB: 33 [claiming that the Husky utility knife is a “common tool” used by “tens of thousands of mechanics who are required to carry such tools in order to earn a living”] [citation and internal quotations and parentheses omitted]), he provides no sales figures for the model at issue in this case to support that claim. And simply referring to his gravity knife as a “Husky” reveals very little, if anything, of its description or popularity, for the term “Husky” does not denote a particular model of knife, or even a specific type of tool. “Husky” is a brand name encompassing numerous categories of tools and -42- other work products, even furniture, sold at Home Depot.21 Moreover, several different models of knives are sold under the Husky brand.22 Thus, to represent, as defendant does, that more than a million Husky knives were sold nationwide in 2006 alone (DB: 31) reveals nothing about the volume of sale of his specific model or whether it has anything in common with the other knives sold, other than the Husky brand name. While defendant understandably prefers to refer to the knife he possessed by its non-descriptive brand name, calling such a knife a “Husky” does nothing to promote correct analysis – what defendant carried was demonstrably a gravity knife, and a particularly dangerous one at that, given that it was literally razor sharp. In fact, as even defendant acknowledges (DB: 33-34), in 2010, following a large-scale investigation into the sale of illegal knives by retailers in New York, Home Depot and other retailers entered into agreements with the New York County District Attorney under which they relinquished their profits from the sale of such knives within the previous four years, agreed to end the future sale of such knives, and turned over their stocks of such knives to the District Attorney’s Office. See Laura Italiano, The ‘Honed’ Depot, New York Post (June 18, 2010); John Eligon, 14 Stores Accused of Selling Illegal Knives, New York Times (June 17, 2010). Thus, these retailers 21 See http://www.homedepot.com/s/husky?NCNI-5 (last accessed November 23, 2015). 22 See http://www.homedepot.com/s/husky%20knife?NCNI-5 (last accessed November 23, 2015). -43- recognized that some knives that they had been selling openly and widely had been determined to be unlawful. Obviously, the agreement with Home Depot did not prohibit sales of all models of Husky utility knives, for some models are still available to be purchased by and shipped to New York customers.23 In any event, whether the model of razor knife defendant possessed was widely sold at the time of purchase and whether it was covered by the 2010 agreement are entirely irrelevant matters. The knife operated in the prohibited fashion when defendant possessed it in 2011, and it was therefore an illegal per se weapon. * * * In sum, statutory text, legislative history, and copious caselaw all demonstrate that Penal Law § 265.01(1) was meant to criminalize per se the possession of gravity knives. Nothing in the Penal Law, precedent, policy or the Constitution requires this Court to upset settled law by judicially engrafting a knowledge element onto an offense purposefully defined as a strict liability crime by the Legislature. 23 See http://www.homedepot.com/p/Husky-4-5-in-Folding-Retractable-Lock- Back-Utility-Knife-97212/204757629 (last accessed November 23, 2015) (New York not listed among jurisdictions to which knife will not be shipped). There is no basis in the record for defendant’s suggestion (DB: 33-34) that his particular model of the Husky knife was among those covered by the 2010 Home Depot agreement; however, the current unavailability in New York of a materially similar model (see supra n. 3) raises an inference that it may have been. -44- POINT II THE TRIAL COURT PROPERLY DECLINED TO DISCHARGE A DELIBERATING JUROR WHO ASSURED THE PARTIES SHE COULD SET ASIDE HER CONCERN ABOUT LIVING NEAR A LOCATION MENTIONED DURING THE TRIAL AND JUDGE THE CASE SOLELY ON THE EVIDENCE (Answering Defendant's Brief, Point II). Defendant claims that the trial court erred when it denied his request to discharge a deliberating juror as “grossly unqualified” (DB: 37). This claim is meritless. A. The Relevant Record On May 29, 2012, immediately following the court’s final instructions to the jury, the two alternate jurors were discharged at defendant’s request (A. 576-77). The next day, during the jury’s deliberations, Juror Number 4 sent the following note to the judge: “I am concerned one of the locations mentioned in the witness’s testimony may affect my judgment in this case due to the proximity to where I live” (A. 592; Court Exh. 4 [note]). The judge then interviewed the juror in open court, in the absence of the other jurors. The juror said that she lived “close to” East 96th Street between First and Second Avenues (A. 597), which, according to defendant’s testimony, was the location where defendant’s ex-girlfriend lived, and where defendant testified he had spent the day before he was later stopped by the police, 24 blocks farther uptown (Parrilla: A. 456, 471, 485). The juror stated that she “didn’t think it would affect [her] judgment,” -45- but that it was “in [her] mind” that she lived close to that location (A. 597). The juror “thought [she] could separate knowing that,” but “just wanted to disclose” her proximity “because [she] can’t talk to anybody else” (A. 597-98). When the court asked the juror if she could “separate that and just judge the testimony,” the juror replied that it was “just in [her] mind” and “was uneasy to think about it,” and she did not “want it to cloud [her] judgment” (A. 598). At that point, the court directed the juror to return to the jury room (A. 598). The court then stated that it did not “really see the problem” (A. 599). Defense counsel argued that “with the record as it is,” the juror should be discharged because her proximity to defendant’s ex-girlfriend’s location was “potentially clouding her judgment in this case” (A. 602). Defense counsel suggested that “maybe the court could ask some additional questions,” such as whether the juror would “be able to judge this case on the evidence and lack of evidence” (A. 601). The juror was then brought back into the courtroom. The court instructed her that jurors often “hear locations during testimony that they have been to or they have heard of or they live nearby,” but that the juror “cannot allow that to affect [her] judgment in any way” and must “set it aside and decide the case solely on the evidence or lack of evidence presented in the courtroom” (A. 604). When the court asked the juror whether she could follow that instruction, the juror said that she would “try,” but repeated that the proximity was “clouding [her] judgment” and said she did not “know what to do or how to [do it]” (A. 604). -46- At that point, the court told the juror that it did not “want to browbeat” her, but that she “can’t let [her proximity to defendant’s ex-girlfriend’s home] influence how [she] arrive[s] at a verdict here,” because “[t]hat would be improper for anyone to do.” The juror replied, “Okay” (A. 605). The court then asked the juror whether she could “set that aside and decide the case solely on the evidence or lack of evidence presented here?” The juror replied, “Yeah” (A. 605). The juror then stated that she was “struggling,” and the judge offered that she “underst[oo]d it [wa]s in [the juror’s] mind,” “but that cannot influence” the juror’s view of “the facts of this case or the verdict that [she] return[s] in this case” (A. 605). The juror said that she “underst[ood]” what the judge was saying (A. 606). The juror repeated that she “just wanted to” tell somebody because she “talk[s] to [her] husband about everything and [she] can’t do that” in this situation, which she found “really hard” (A. 606). The judge responded that she “appreciate[d] [the juror] telling us this,” but that her proximity was “not a factor that [the juror] can consider” (A. 606). The juror then reiterated that her proximity to the location was “just in [her] mind” (A. 607). The discussion concluded: THE COURT: In terms of evaluating the evidence, the fact that you have ever lived in the area or know the area cannot be one of the factors. Juror Number 4: Okay. Yeah, that I understand. THE COURT: Do you understand what I am saying? Juror Number 4: Yes. -47- THE COURT: Can you follow that? Juror Number 4: I can follow that, yeah. The court then excused the juror from the courtroom (A. 607). After that second round of inquiry was complete, defense counsel requested a mistrial, arguing that the juror had failed to provide “an unequivocal assurance that she would be able to separate out the fact that she lives near the location that was mentioned in this case” (A. 608). Defense counsel added that his “application is that [the juror] be discharged.” The court ruled that the juror “remain[ed] qualified to serve based on her answers here” (A. 608). On appeal to the Appellate Division, defendant claimed that the juror’s statements rendered her “grossly unqualified” to remain on the jury, and that the manner and content of the court’s colloquy with the juror were improper. The Appellate Division rejected those claims, holding that the juror “unequivocally confirmed that she would follow the court’s instructions” and that her “evaluation of the evidence” would be unaffected by her concerns. In addition, the Appellate Division held that defendant’s challenges to the manner and content of the court’s inquiry were unpreserved, and, in any event, meritless (Parrilla, 112 A.D.3d at 517-18; A. 3-4). B. After appropriate inquiry, the trial court properly found no cause to discharge the deliberating juror. Defendant now contends, as he did in the Appellate Division, that the trial court erred in denying his motion to discharge Juror Number 4 from the jury. -48- Specifically, defendant claims that the juror should have been discharged because her “judgment was ‘clouded’ by her discovery that she lived in the same area as [defendant’s] ex-girlfriend” (DB: 39). Defendant also complains about the manner and content of the court’s colloquy with the juror (DB: 37, 41-42). But, as the Appellate Division properly concluded (A. 3-4), defendant’s claims are partially unpreserved and entirely meritless. As an initial matter, defendant’s complaints about the manner and extent of the trial court’s examination of the juror are unpreserved for this Court’s review. Defendant argues that the court “browbeat[ ]” the juror and “cowed her into submission” until she offered her assurance of impartiality, and “missed the point” by not questioning her about her “fear and anxiety” (DB: 37, 41). But, after the court’s initial inquiry of the juror, the only question defense counsel asked the court to pose to the juror was whether she would “be able to judge this case on the evidence and lack of evidence” (A. 601). And when the juror was brought back into the courtroom, the judge twice asked her precisely that. Specifically, the judge asked the juror whether she could follow the court’s instruction to “just judge the case solely on the evidence or lack of evidence” (A. 604), and whether she could set aside her concerns and “decide the case solely on the evidence or lack of evidence presented here” (A. 605). After that second round of inquiry, defense counsel did not request that the court pose any additional questions to the juror. Nor did counsel complain about the court’s manner of questioning the juror. Thus, defendant’s arguments on appeal that the -49- court “browbeat” the juror and failed to ask her about her “fear and anxiety” are unpreserved for this Court’s review. See People v. Hicks, 6 N.Y.3d 737, 739 (2005) (defendant’s claim that trial court “failed to conduct a probing and tactful inquiry” to determine whether juror was grossly unqualified was unpreserved; defendant “neither informed the court that its questioning was insufficient or objectionable, nor suggested additional avenues of inquiry”); People v. Torres, 80 N.Y.2d 944, 945 (1992) (defendant’s claim that the trial court “failed to conduct a sufficiently probing inquiry at the disqualification hearing” unpreserved). Defendant professes to find “hard to understand” (DB: 42) the Appellate Division’s ruling that he failed to preserve his appellate challenge to the “manner or sufficiency of the court’s inquiry” (A. 3-4), but the distinction between the adequacy of an inquiry and the correctness of an ensuing legal ruling is a common and pedestrian one. See, e.g., People v. Everson, 100 N.Y.2d 609, 610 (2003) (“defense counsel neither objected to the adequacy or accuracy of the limiting instruction”); People v. Albert, 85 N.Y.2d 851, 852 (1995) (defense counsel “failed to object to the manner in which the trial court investigated suggestions of juror misconduct and outside influence,” and “acquiesced in the scope and content of the court’s inquiry”); People v. Callahan, 80 N.Y.2d 273, 281 (1992) (for preservation purposes, distinguishing challenge to “adequacy of the procedures the court used to arrive at its sentencing determination” from challenge to “legality of the sentence” itself). Defendant attempts to blur that distinction by characterizing his counsel’s objection below in -50- hybrid fashion (see DB: 42 [“the court’s inquiry was insufficient to guarantee the juror’s fairness”]), but counsel’s actual objection at the cited passage was that the juror’s assurance of fairness “didn’t rise to the level” necessary for her to remain on the jury (A. 608). That objection plainly was directed at the court’s legal ruling rather than the manner or scope of its inquiry. In any event, the trial court correctly retained Juror Number 4. “The constitutional right of a criminal defendant to a fair trial includes … the right to an impartial jury.” People v. Rodriguez, 71 N.Y.2d 214, 218 (1988), citing N.Y. Const., art. I, §§ 6, 2; U.S. Const. 6th, 14th Amends.; People v. Buford, 69 N.Y.2d 290, 298 (1987). To “protect the impartiality of the jury,” the Legislature enacted Criminal Procedure Law Section 270.35 as a “mechanism for a juror to be dismissed during the trial or during deliberations.” Rodriguez, 71 N.Y.2d at 218. That section provides, in pertinent part, that a sworn juror must be discharged if she is found to be “grossly unqualified.” A juror is grossly unqualified “only when it becomes obvious that [the] particular juror possesses a state of mind which would prevent the rendering of an impartial verdict.” People v. Buford, 69 N.Y.2d at 298; see also People v. Mejias, 21 N.Y.3d 73, 79 (2013). A trial court’s dismissal of a juror for being grossly unqualified may not be based on “speculat[ion] as to possible partiality of the juror based on her equivocal responses.” People v. Buford, 69 N.Y.2d at 299. That is, the court may not discharge a sworn juror unless “convinced” that the juror’s state of mind will “prevent” her from rendering an impartial verdict. Id. Scenarios justifying discharge of a sworn juror -51- include “a juror’s bias against a particular race”; “a juror’s intimate relationship with a prosecution witness”; “or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background.” People v. Mejias, 21 N.Y.3d at 79. A sworn juror’s proximity to the defendant’s residence may also be a basis for discharge if the juror expresses “repeated doubts that she can render a verdict based on the evidence as a result of her fear of retribution.” People v. Carrasco, 262 A.D.2d 50, 51 (1st Dept. 1999), lv. denied, 93 N.Y.2d 1015 (1999). On the other hand, a deliberating juror is not grossly unqualified for merely expressing a “generalized concern for his safety” based on the possibility that the defendant may have been in the juror’s neighborhood. People v. Parnell, 60 A.D.3d 1087, 1087 (2nd Dept. 2009), lv. denied, 12 N.Y.3d 857 (2009). The proponent of disqualification of a sworn juror bears a much greater burden than he would if he were challenging a prospective juror for cause during voir dire, when the consequences of discharging a juror are not nearly as significant. See People v. Johnson, 94 N.Y.2d 600, 614 (2000) (challenge for cause must be granted when prospective juror has state of mind “likely to preclude impartial service” and does not provide “unequivocal assurance” of impartiality). Unlike a prospective juror, a sworn juror may not be discharged based on merely equivocal statements concerning her state of mind. People v. Buford, 69 N.Y.2d at 299. When the court becomes aware of a sworn juror’s possible bias, the court must conduct a “tactful and probing inquiry” of the juror in the presence of counsel and -52- the defendant. People v. Anderson, 70 N.Y.2d 729, 730 (1987); People v. Pizarro, 24 A.D.3d 309, 310 (1st Dept. 2005), aff’d, 7 N.Y.3d 840 (2006). Thus, when a sworn juror indicates that she may have a bias, the court should inquire whether the juror can give an “assurance” that she “would or could put her bias aside and reach a determination solely on the facts presented at trial.” People v. Rodriguez, 71 N.Y.2d at 221. If the juror is able to give that assurance, she is not grossly unqualified. Id.; People v. Parnell, 60 A.D.3d 1087, 1087 (2nd Dept. 2009), lv. denied, 12 N.Y.3d 857 (2009). Moreover, when the disqualification of the sworn juror “would effect the premature termination of the trial,” as when an alternate juror cannot be substituted for the disqualified juror, the court must be particularly “circumspect” about disqualifying the juror. People v. Daniels, 218 A.D.2d 589, 591 (1st Dept. 1995). Finally, a trial court’s determination of whether a sworn juror is grossly unqualified is accorded great deference, “because that Judge is in the best position to assess partiality in an allegedly biased juror.” People v. Rodriguez, 71 N.Y.2d at 219; see also People v. Pizarro, 24 A.D.3d at 309 (trial court’s credibility findings as to whether sworn juror can be impartial “entitled to great deference”). Here, Juror Number 4 never unequivocally indicated that her proximity to defendant’s ex-girlfriend’s home would prevent her from rendering an impartial verdict. Although the juror’s note stated that she was “concerned” that her proximity to defendant’s ex-girlfriend’s home “may affect” her judgment (A. 592; Court Exh. 4), when she was brought into the courtroom, she stated that she “didn’t think” her -53- proximity “would affect [her] judgment,” but that it was simply something “in [her] mind” (A. 597). She added that she “just wanted to disclose” it because she was not allowed to talk to anybody else, particularly her husband, about the trial. And, although she stated that her proximity to that location made her “uneasy,” she believed she “could separate knowing that” and did not “want it to cloud [her] judgment” (A. 597-98). Given that the juror herself did not think that her proximity to defendant’s ex- girlfriend’s home would affect her judgment, the court could not reasonably have concluded – much less have been “convinced” – that there was anything to “prevent” her from rendering an impartial verdict. See People v. Buford, 69 N.Y.2d at 299; see also People v. Hilton, 147 A.D.2d 427, 428-29 (1st Dept. 1989) (juror whose “contact with a defense witness” “involved a single, fleeting encounter at a party fifteen to sixteen years prior to trial” not grossly unqualified). And in a case in which the only contested issue of material fact was whether defendant’s knife opened by flicking the wrist (see Defense Summation: A. 534-39), the location of defendant’s ex-girlfriend’s home was a “collateral question,” leaving little chance that the juror’s proximity to it could “affect her ability to evaluate whether the prosecution proved its case.” See People v. Smitherman, 69 N.Y.2d 290, 300 (1987) (decided with People v. Buford); see also People v. Gozdalski, 239 A.D.2d 896, 896-97 (4th Dept. 1997) (juror grossly unqualified based on “familiarity with several material facts” and uncertainty “whether he could determine the facts impartially”), lv. denied, 90 N.Y.2d 858 (1997). Indeed, if the court -54- had disqualified the juror, it would have flagrantly disregarded this Court’s admonition that a trial court may not speculate about a juror’s state of mind based on equivocal responses. People v. Buford, 69 N.Y.2d at 299. Moreover, the juror’s assurance that her verdict would be based solely on the evidence, and not influenced by her proximity to where defendant’s ex-girlfriend lived, dispelled any doubt that she could render an impartial verdict. To be sure, when the court first instructed the juror that her proximity to the location could not affect her judgment, and that she had to “decide the case solely on the evidence or lack of evidence presented in the courtroom,” the juror replied only that she would “try,” but did not “know what to do or how to [do it]” (A. 604). But when the court explained that it would be “improper” for the juror’s proximity to influence her verdict, and then asked whether she could “set that aside and decide the case solely on the evidence or lack of evidence presented here,” the juror replied, “Yeah” (A. 605). Finally, the court instructed the juror that, “In terms of evaluating the evidence, the fact that you have ever lived in the area or know the area cannot be one of the factors,” to which the juror replied, “Okay. Yeah, that I understand” (A. 607). The court then asked the juror, “Can you follow that?” The juror answered, “I can follow that, yeah” (A. 607). Accordingly, contrary to defendant’s unpreserved claim (DB: 41), the court’s colloquy with the juror focused squarely on the issue the juror raised: whether her concern about the location would affect her ability to render a verdict on the evidence. On that issue, the juror’s assurances amply supported the court’s -55- decision to retain her on the jury. See People v. Rodriguez, 71 N.Y.2d at 221 (juror’s indication of bias may be overcome by “assurance that she would or could put her bias aside and reach a determination solely on the facts presented at trial”); People v. Warren, 27 A.D.3d 496, 498 (2nd Dept. 2006) (“juror in question stated unequivocally that she could render an impartial verdict”), lv. denied, 7 N.Y.3d 796 (2006). Nevertheless, defendant attacks the adequacy of the juror’s assurances by asserting that the juror was “so upset that the court had to tell her, ‘Just relax’” (DB: 41). From those two words, defendant claims that the juror “obviously was still frozen in irrational fear and anxiety” (DB: 42). But the juror herself never stated that she was fearful or anxious. And the court told the juror to “just relax” at the conclusion of the colloquy, after she has already assured the court that she could judge the case solely on the evidence. In context, the court’s advice to the juror appears to have been nothing more than a polite way of asking her to wait patiently in another room while the court resolved whether she should remain on the jury. Specifically, after the court had finished questioning the juror for the second time, the court directed her to “[w]ait again in the other room once more.” The juror replied, “Okay,” and the court told her to “[j]ust relax” (A. 607). Moreover, the record hardly shows that the court bullied her or displayed a “dismissive attitude” toward her (DB: 41). To the contrary, the judge repeatedly assured her that she “appreciate[d]” her raising her concern (A. 598), that she “appreciate[d] [the juror] telling us this” (A. 606), and that she “underst[oo]d it was in [the juror’s] mind” (A. 607). In addition, as defendant -56- recognizes (DB: 41), when at sentencing the court denied his motion to set aside the judgment based on the juror having remained on the jury, the court noted that it had “observed [the juror’s] demeanor” when she was questioned (A. 634), a comment that defendant did not dispute or request clarification regarding. Accordingly, defendant’s claim that the juror’s demeanor showed that she was grossly unqualified is meritless. See People v. Santiago, 255 A.D.2d 63, 69 (1st Dept. 1999) (juror not grossly unqualified even though he reported having lost sleep based on “fear of defendant and his associates”), lv. denied, 94 N.Y.2d 829 (1999). In sum, Juror Number 4’s expression of concern based on her proximity to defendant’s ex-girlfriend’s home did not make her grossly unqualified to remain on the jury. As the Appellate Division concluded, her assurance of impartiality further supported the court’s decision not to disqualify her. Thus, defendant is not entitled to a new trial. -57- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: ANDREW E. SEEWALD Assistant District Attorney PATRICK J. HYNES ANDREW E. SEEWALD Assistant District Attorneys Of Counsel December 1, 2015 -58-