People v. Ortiz

Decision Date05 July 1984
Citation479 N.Y.S.2d 613,125 Misc.2d 318
PartiesThe PEOPLE of the State of New York v. Juan ORTIZ, Defendant.
CourtNew York City Court

Caesar Cirigliano, Legal Aid Society, New York City (Paul Markstein, White Plains, of counsel), for defendant.

Mario Merola, Dist. Atty., New York City (Susan Lee Strauss, New York City, of counsel), for the People.


Can New York City validly ban from its streets the possession of knives with a blade length of four inches or greater? In an apparent case of first impression, the Court is called upon to determine the constitutionality of the recently enacted "Knife Law," New York City Administrative Code Section 436-5.2, which in journalistic circles has been nicknamed "The Sweetheart Law." 1

The defendant, Juan Ortiz, was apprehended on March 20, 1984 in front of a laundromat located on Featherbed Lane in the Bronx. The arresting officers allegedly thought that he was fleeing the laundromat after a reported armed robbery. A search incident to arrest produced a wallet belonging to another, 11 rolls of quarters, and a knife. The knife is of the folding type, with a four-inch blade. Mr. Ortiz is charged with criminal possession of stolen property and illegal possession of a knife. He has moved to dismiss the latter charge on constitutional grounds. CPL 170.35, subd. 1, subp. c.

The defendant's attack on the "knife law" is twofold:

1. That the new law is unconstitutional on its face, and as applied to him; that it is vague, overbroad, and an unreasonable exercise of the police power by the municipality that enacted it.

2. That the law is inconsistent with and preempted by Article 265 of the Penal Law.

The parties have submitted well-briefed memoranda of law which have aided the Court's deliberation. The Office of the Corporation Counsel which was, in large measure, responsible for the "knife law," declined the opportunity to formally intervene as a friend of the Court.

The new knife law (Local Law # 64 of 1983) is the successor to a similar provision struck down by the Court of Appeals in 1961, in People v. Munoz, 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535. The old statute, Local Law # 107 of 1959, banned knives and "any sharp-pointed or edged instruments which may be used for cutting or puncturing" when possessed by persons under age 21 in the streets, parks or public places. Justice Van Voorhis listed three flaws which individually, were sufficient to invalidate the statute:

1. The proscription against all knives or sharp-pointed instruments was too broad, criminalized the innocent possession of household objects (such as knitting needles) and was therefore an irrational exercise of the police power;

2. This irrationality was compounded by the considered omission of any mens rea or "scienter" requirement;

3. The overall vagueness of this local law would allow the police to harass those whom they believed to be "bad boys and girls" (Munoz supra at 58, 211 N.Y.S.2d 146, 172 N.E.2d 535), i.e. to exercise harsh and discriminatory enforcement. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.

The new law makes two improvements:

1. Only knives with a four inch blade length or greater are banned by the new law; and

2. The law applies to persons of all ages, thus avoiding equal protection issues.

Once again, the forbidden areas are the streets, parks or public places. 2

The Local Law as it pertains to this case reads as follows:

"a. Legislative findings. It is hereby declared and found that the possession in public places, streets and parks of the city, of large knives is a menace to the public health, peace, safety and welfare of the people of the city; that the possession in public places, streets and parks of such knives has resulted in the commission of many homicides, robberies, maimings and assaults of and upon the people of the city; that this condition encourages and fosters the commission of crimes, and contributes to juvenile delinquency, youth crime and gangsterism; that unless the possession or carrying in public places, streets and parks of the city of such knives without a lawful purpose is prohibited, there is danger of an increase in crimes of violence and other conditions detrimental to public peace, safety and welfare. It is further declared and found that the wearing or carrying of knives in open view in public places while such knives are not being used for a lawful purpose is unnecessary and threatening to the public and should be prohibited.

"b. It shall be unlawful for any person to carry on his or her person or have in his or her possession, in any public place, street, or park any knife which has a blade length of four inches or more.

"d. The provisions of subdivisions b and c of this section shall not apply to (1) persons in the military service of the state of New York when duly authorized to carry or display knives pursuant to regulations issued by the chief of staff to the governor; (2) police officers and peace officers as defined in the criminal procedure law; (3) participants in special events when authorized by the police commissioner; (4) persons in the military or other service of the United States, in pursuit of official duty authorized by federal law; or (5) any person displaying or in possession of a knife otherwise in violation of this section when such knife (a) is being used for or transported immediately to or from a place where it is used for hunting, fishing, camping, hiking, picnicing or any employment, trade or occupation customarily requiring the use of such knife; or (b) is displayed or carried by a member of a theatrical group, drill team, military or paramilitary unit or veterans organization, to, from, or during a meeting, parade or other performance or practice for such event, which customarily requires the carrying of such knife; or (c) is being transported directly to or from a place of purchase, sharpening or repair, packaged in such a manner as not to allow easy access to such knife while it is transported; or (d) is displayed or carried by a duly enrolled member of the Boy or Girl Scouts of America or a similar organization or society and such display or possession is necessary to participate in the activities of such organization or society.

"e. Violation of this section shall be an offense punishable by a fine of not more than three hundred dollars or by imprisonment not exceeding fifteen days, or by both such fine and imprisonment.

"f. Separability. If any clause, sentence, paragraph or part of this Local Law, or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof."

Presumption of Constitutionality

An exceedingly strong presumption of constitutionality attaches not only to enactments of the state legislature, but to municipal ordinances as well. Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426. While this presumption is a rebuttable one, unconstitutionality must be demonstrated by the defendant beyond a reasonable doubt. Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539. Only as a last resort should a court of first instance strike down a legislative enactment on constitutional grounds, and only when it has been shown that the statute is unreasonably arbitrary, and the conclusion of unconstitutionality is inescapable. Matter of Spielvogel v. Ford, 1 N.Y.2d 558, 154 N.Y.S.2d 889, 136 N.E.2d 856, dismd. 352 U.S. 957, 77 S.Ct. 362, 1 L.Ed.2d 316; McKinney's Cons.Laws of N.Y., Book 1, Statutes Sec. 150 subd. a.

It must also be presumed by the Court that the legislative body has investigated and found the existence of a situation showing or indicating the need for or desirability of the Local Law, and if any state of facts known or to be assumed justifies the disputed measure, the Court's power of inquiry ends. Lighthouse Shores, Inc. v. Town of Islip, 41 N.Y.2d 7, 11-12, 390 N.Y.S.2d 827, 359 N.E.2d 337; Matter of Van Berkel v. Power, supra.

If a statute is vague or uncertain, the Court is obliged to construe it in a manner that will avoid unconstitutional infirmities, if possible. McKinney's Cons.Laws of N.Y., Book 1, Statutes Sec. 150(c).

Finally, the Court may not consider the constitutionality of the entirety of the statute, but must focus its attention on the specific portion applicable to the case at hand. Mr. Ortiz is accused of possession of a four-inch knife in a public street, and not in a park or public place, and therefore the scope of the Court's analysis is restricted to that provision which the defendant has asserted standing to challenge. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439; People v. Mancuso, 255 N.Y. 463, 175 N.E. 177; Hauser v. North British Ins. Co., 206 N.Y. 455, 100 N.E. 52; Local Law # 64 of 1983, subd. f.


With that familiar litany of judicial restraint firmly in mind, the Court will consider the question of whether the statute is void for vagueness. A prime purpose of the void for vagueness doctrine is to meet the constitutional requisite that a statute be informative on its face (People v. Firth, 3 N.Y.2d 472, 474, 168 N.Y.S.2d 949, 146 N.E.2d 682) to ensure that citizens can conform their conduct to the dictates of the law. People v. Illardo, 48 N.Y.2d 408, 413, 423 N.Y.S.2d 470, 399 N.E.2d 59. The enactment in question must be sufficiently definite to give a reasonable man subject to it notice of the nature of what is prohibited and what is required of him. People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 215 N.E.2d 345. An equally important consideration is the prevention of arbitrary and discriminatory enforcement by requiring boundaries sufficiently distinct for police, judges and juries to administer the law fairly. People v. Cruz, 48 N.Y.2d 419, 423...

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