NYC’s DAs differ on vacating old gravity knife convictions
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Gravity knives were decriminalized in May. Eagle file photo by Mary Frost.
By David Brand
For New Yorkers appealing a conviction for carrying a so-called gravity knife, the outcome of their case largely depends on what borough they were charged in.
A gravity knife was defined as any knife where the blade folds and locks into the handle, and that can be opened with the use of one hand. The tools are commonly used by carpenters, warehouse workers and other laborers, but the charge was disproportionately applied to people of color, especially immigrants. Gov. Andrew Cuomo signed a bill decriminalizing the tools in May.
Two months later, the city’s district attorneys differ in how they are handling gravity knife convictions that were under direct appeal at the time of the law change.
Only the Bronx District Attorney’s Office says it will vacate gravity knife convictions for anyone whose case was pending direct appeal when the state amended the law. The Manhattan DA is still figuring out how to proceeed and the Brooklyn DA said it’s a moot point — they had no appeals pending at the time of the amended law.
The top prosecutors in Queens and Staten Island are steadfast in upholding convictions under the old law. Both said they will not automatically drop convictions that were pending direct appeal at the time of the new law.
“The statute does not have retroactive language. These convictions are presumed valid,” said a spokesperson for the Queens DA’s Office. “Many gravity knife convictions are a result of guilty pleas where other crimes were charged — sometimes more serious crimes. We will review any individual claim.”
The two top contenders for Queens DA have not weighed in for this story.
Borough President Melinda Katz leads public defender Tiffany Cabán by 60 votes after a recount in the Democratic primary for Queens DA. Both told the Eagle in May that they supported decriminalizing gravity knife possession, but neither provided a response about how they would address convictions under appeal as of press time Tuesday.
A spokesperson for Staten Island DA Michael McMahon said all pending cases “will be dismissed under the repealed gravity knife statute.”
But, the spokesperson added, “the office is not vacating convictions that are final or still pending appeal.”
In contrast, Bronx DA Darcel Clark will vacate convictions that were under appeal at the time of the new law.
“If there is a direct appeal or someone makes a 440 motion to vacate we will consent,” said a spokesperson for Clark, referring to the section of criminal procedural law about motions to overturn a conviction.
“We will be vacating convictions for gravity knife possession on a case by case basis,” the spokesperson added. Bronx Justice News also reported on Clark’s vacature policy.
In Manhattan DA Cy Vance’s office, the way forward is less certain.
“We are still finalizing our plans for gravity knife possession convictions that are pending appeal,” said spokesperson Emily Tuttle.
The Manhattan DA has dismissed all 38 pending adjournments in contemplation of dismissal, known as ACDs, for gravity knife possession “that had no remaining conditions,” Tuttle said.
The office also moved to vacate 232 gravity knife bench warrants and dismiss the underlying pending cases, she said.
Across the East River in Brooklyn, there were no direct appeals pending at the time of the law change, said Brooklyn DA’s Office spokesperson Oren Yaniv.
Yaniv said DA Eric Gonzalez’s office would consider motions to vacate past convictions “on a case-by-case basis.”
The measure to remove gravity knives from the penal code failed twice in the state legislature before it passed both chambers during the last legislative session and arrived at Cuomo’s desk.
Manhattan Assemblymember Dan Quart, who will likely challenge Vance for Manhattan DA in 2021, sponsored the decriminalization bill and called on DAs across the city to vacate convictions for a charge that no longer exists.
“The passage of the gravity knife reform bill provided defendants, who had been swept up into the criminal justice system by a discriminatory, unconstitutional law, a chance to have their cases dropped,” Quart told the Eagle. “It’s disappointing that the Queens and Staten Island DAs have chosen to be punitive for punitive’s sake.”
Quart also criticized Manhattan DA Vance’s lack of a plan for convictions pending appeal.
"It is outrageous that the DA most responsible for weaponizing the gravity knife statute, when confronted with a unanimous vote in the legislature, the Governor's signature, and a federal judge ruling his application of the law unconstitutional, remains undecided,” Quart said. “It's as if he is incapable of doing the right thing and vacating immediately."
The Legal Aid Society analyzed client data in May and found that Black and Latinx defendants accounted for about 85 percent of the 885 of their clients who were arraigned on gravity knife charges citywide in the first half of 2018.
The public defender organization advocated for decriminalization for years ahead of the law change and now calls on all five DAs across to vacate past convictions.
“Albany spoke decisively and loudly when lawmakers repealed New York’s broken and antiquated gravity knife statute this past session,” said Richard Joselson, a supervising attorney with Legal Aid’s Criminal Appeals Bureau. “Possession of these basic work tools should never have been the basis of a criminal conviction, and now that the law has finally been repealed, district attorneys must heed the public’s message by vacating these convictions immediately.”
