Cite as PEOPLE v. DOLSON, 142 Misc 2d 779 (N.Y. 1989)

           THE PEOPLE OF THE STATE OF NEW YORK, Respondent, 

                                  v.

                       MARTIN DOLSON, Appellant.

            County Court, Onondaga County, January 23, 1989

      Frank H. Hiscock Legal Aid Society for appellant. Robert E. 
Wildridge, District Attorney (Anthony J. Gigliotti of counsel), 
for plaintiff.

                    OPINION OF THE COURT

      J. KEVIN MULROY, J.

      On May 31, 1987 the appellant/defendant was arrested for 
disorderly conduct and criminal possession of a weapon in the 
fourth degree following an argument with another man in the
City of Syracuse. A nonjury trial was held in Syracuse City Court
(Brian DeJoseph, J.), at which time he was found not guilty of
disorderly conduct, but guilty of possessing a gravity knife in
violation of Penal Law section 265.01 (1). Appellant/defendant's
sentence has been stayed pending determination of this appeal. This
appeal raises the issues of:

      (1) Whether the knife which appellant possessed is a gravity 
knife, as defined by Penal Law section 265.00 (5), and

      (2) Whether the maximum six-month sentence imposed by the
trial court was unduly harsh and excessive.

      Addressing the first issue of whether the knife found on
appellant is a gravity knife, Penal Law section 265.00 (5) states
that: "'Gravity knife' means any knife which has 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."

      The court has inspected the knife seized from appellant, and
contrary to what the trial court has concluded and the People argue
on appeal, upon a study of the trial transcript, a review of the
case law, and a careful reading of the statute, it is clear to this
court that the knife in question does not fall within the purview
of Penal Law section 285.00 (5).

      The knife in question, in the closed position, is covered on 
each side by two metal and wooden guards attached to the blade's
base. After being unlocked by removing the safety lever, the blade
can, in fact, be released from its sheath by a flick of the wrist,
thereby utilizing centrifugal force to expose the blade, although
it is difficult to say whether this was possible when it was new,
or whether by alteration or use this has become possible. While
this appears to meet the first part of the statutory definition of
a gravity knife, an important difference exists here. The blade of
the knife recovered from appellant does not lock into place "when
released" from its cover.

      It appears that very few courts in this State have addressed 
 this issue, but most recently, in People v Mott (137 Misc 2d  
757), a court excluded from the definition in Penal Law section
265.00 (5) what is termed a Balisong or butterfly knife, when such
knives do not "lock into place at the moment it is released as a
gravity knife should under its definition" (People v Mott, supra,
at 758). The knife in that case, much like the one found on
appellant, was found not to be a gravity knife because, "it
requires at least two manual operations even after the blade is
exposed: (1) grasping and folding the second handle, and (2)
fastening the clasp which locks the handles together." (People v
Mott, supra, at 758-759.)

      At trial, defense counsel had the arresting officer
demonstrate the "flicking" action which opens the knife blade. In
that position, the officer explained to the court, the blade is not
locked in place. Contrary to the description given by the People,
in order to lock the blade of this knife in place, the holder would
need to follow the two additional steps described in Mott (supra).

      Furthermore, when both of the officers who responded to the
scene where the defendant was arrested were asked to describe the
knife recovered, they both referred to it as a "butterfly knife",
not a gravity knife.

      In addition, a Federal District Court, in interpreting this
statute, stated: "A gravity knife differs from a penknife in that
by depressing its button, accompanied by a flicking of the wrist,
the blade exits the handle and locks into place. It can be opened
and remain so without touching the lock." (See, United States v
Ochs, 461 F Supp 1, 4 [SD NY 1978].)

      Unlike the knife described above, to lock into place the knife
recovered from appellant, the user must grasp the second handle and
manually push the metal lever into the locked position.

      While it is obvious that a knife such as the one recovered
from appellant is capable of doing serious harm to an individual,
the Legislature took pains to describe and outlaw certain weapons
whose potential for quick deployment make them per se too dangerous
to possess. Clearly this knife is not such a weapon. The evidence
presented at trial failed to demonstrate that the knife in question
was a gravity knife, pursuant to Penal Law section 265.00 (5).
Therefore, reviewing the record in the light most favorable to the
People (see, People v Contes, 60 NY2d 620), this court finds that
the evidence is insufficient to establish a violation of Penal Law
section 265.01 (1). Accordingly, the conviction for criminal
possession of a weapon in the fourth degree must be reversed
(People v Perez, 123 AD2d 721). Insofar as the resolution of this
issue in favor of the appellant will result in a reversal of his
conviction and dismissal of the accusatory instrument, there
remains no need for the court to consider the excessive sentencing
issue presented by appellant.