Attorney employs technical defense to win Acquittal in Criminal Possession
of a Weapon Case.
Matthew Galluzzo, of
Galluzzo & Arnone LLP and the
newyorkcriminaldefenseblawg.com recently won an jury acquittal in Manhattan for the firm’s client
who had been charged with possessing a switchblade knife. The facts of
the case were relatively straightforward. One morning in October 2009
the defendant was about to board a New York City subway train carrying
what he believed to be a perfectly legal knife on his waistband. Police
observed him with the knife attached to his belt in plain view, arrested
him, and charged him with a variation of Criminal Possession of a Weapon
in the Fourth Degree, Penal Law section 265.01.
At trial, Galluzzo conceded the facts of the arrest and that the defendant
possessed the knife in question. The defense employed was simple, yet
effective: the knife was not a switchblade.
Penal Law section 265.01 reads as follows:
§ 265.01 Criminal possession of a weapon in the fourth degree. A person
is guilty of criminal possession of a weapon in the fourth degree when:
(1) He or she possesses any firearm, electronic dart gun, electronic stun
gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle
knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal
knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot
or slungshot, shirken or "Kung Fu star"
The definition of switchblade is contained in Penal Law section 265.00(4).
4. "Switchblade knife" means any knife which has a blade which
opens automatically by hand pressure applied to a button, spring or other
device in the handle of the knife.
Thus, in order to prove the defendant’s guilt of possessing a switchblade,
the People had to prove that the knife recovered from the defendant was
a “switchblade,” as set forth in the charging documents. The
defense challenged the prosecution’s characterization of the knife
in question as a switchblade from the outset. In his opening statement,
Galluzzo asserted that “Every knife has two parts, a blade and a
handle. And this button or notch . . . is, in fact on the blade. So when
you’re opening this knife, you’ll see what you’re really
pushing on is the blade and not he button on the handle.”
The arresting officer testified as to the details of the arrest, and reported
to the jury that the defendant told him that he carried the knife for
his protection, since he could not legally carry a gun. The officer testified
that the defendant acted in a cool, calm and collected manner in dealing
with the officers, and that he “gently” handed the knife over
when asked to do so. The defense asked the arresting officer a series
of questions about the location of the button on the knife, including
Q: But the button is basically on the back of the blade itself so as the
blade moves, the button is moving too?
Later, when the arresting officer’s partner testified on cross-examination,
the following colloquy took place:
Q: Now that little notch without opening it, that little notch on the knife
that you are pushing, that’s made out of metal, right?
Q: And it’s the same metal that the blade is made out of or appears
to be, right?
Q: And, in fact, that little notch is actually attached to the back of
the blade, correct?
A: That’s correct.
Q: And that little notch because it’s attached to the blade swings
to the other side of the knife when the knife pops open; right?
A: That’s correct.
Q: And then when you close the knife back up, that little notch that’s
attached to the blade swings back through the handle of the knife back
into the back where it is now, right?
A: That’s correct.
Later, in summation, Galluzzo highlighted the confusing nature of the statute
“You know what, it seems almost absurd that we’re here. Why
can’t someone just tell us whether this things is a switchblade
or not. The legislature was supposed to tell us But, unfortunately, once
again, we have been failed by our State legislature because we’ve
been given a statute that’s poorly written and does not make clear
what is and what is not a switchblade. As a result, people are getting
arrested for possessing knives that they don’t realize are illegal,
and you’re being brought here and forced to sit through a trial
to sort this whole mess out.”
The defense went on to discuss the knife itself:
“You could see if you look up close at the knife that it’s
all one piece of metal, that blade, and that blade has a sharp side and
on the back it has this little notch sticking out. So are you pushing
a button or device in the handle? No, you’re pushing the blade when
you’re opening up the knife.” Galluzzo also challenged the characterization of the mechanism on the knife
as a ‘button’: “You could compare that where — to what you think is a classic
switchblade you may have seen in old movies like West Side Story, Twelve
Angry Men or Rebel Without a Cause . . . where it’s the switchblades
that people have. Maybe you’ve seen one in real life or maybe on
TV, you would think of a long thin handle and right in the middle of that
long thin handle, there is a button, a button you have to depress like
on a computer keyboard, press that button in the middle of the handle
and out pops the long, thin blade that’s about the same length as
the handle itself . . . . That’s the kind of button that this statute
is  talking about. This is not a button that you’re actually pushing.
What you’re actually pushing, again, is the blade itself.”
The jury presumably agreed with the defense’s interpretation of the
statute, and returned a not guilty verdict.
criminal possession of a weapon,