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THE PEOPLE DID NOT PROVE DEFENDANT POSSESSED A RAZOR BLADE PARTIALLY WRAPPED IN TAPE WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction as against the weight of the evidence, determined the People did not prove that defendant possessed a razor blade partially wrapped in tape with the intent to use it unlawfully against another:

Penal Law § 265.15(4) provides, in relevant part, that “[t]he possession by any person of any . . . weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”

“The presumption of unlawful intent under Penal Law § 265.15(4), like all statutory presumptions in New York, is a permissive presumption, meaning that [it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof'” … . “Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts the statute requires be proved'” … . “If the People succeed in this endeavor, they are entitled to rely on the presumption, which form[s] part of the support for [their] prima facie case’ against the defendant” … . “The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People” … “Evidence rebutting the presumption will not negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions'” … . …

… [T]he People failed to establish beyond a reasonable doubt that the razor blade recovered from the defendant was “designed, made or adapted for use primarily as a weapon” … . There was no testimony by the detectives indicating that they knew based on their experience that the primary use of this type of instrument, by virtue of being wrapped in black tape, was as a weapon, or that they attempted to ascertain from the defendant the manner in which he utilized the blade … . Furthermore, there was no evidence from which it could be inferred that the defendant considered the instrument to be a weapon … . People v Rodgers, 2019 NY Slip Op 06002, Second Dept 7-31-19

 

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