PEOPLE v. BIRTH (2008)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 10, 2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The verdict was based on legally sufficient evidence.   The People proved the operability, within the meaning of the statute, of the gravity knife at issue (see Penal Law § 265.00[5];  § 265.01[1];  § 265.02[1] ).   An officer who tested the knife after defendant's arrest described the manner in which the knife operated, which conformed to the statutory definition of a gravity knife.   The officer similarly demonstrated the operability of the weapon in open court.   The People had no obligation to prove that the knife would also function as a gravity knife if the officer repeated the test while sitting down and using his weaker hand, as suggested by defense counsel at trial (see People v. Smith, 309 A.D.2d 608, 765 N.Y.S.2d 777 [2003] lv. denied 1 N.Y.3d 580, 775 N.Y.S.2d 796, 807 N.E.2d 909 [2003] ).   Defendant's other arguments on this issue are without merit.

The court correctly instructed the jury on the elements of the crime with which defendant was charged (see People v. Berrier, 223 A.D.2d 456, 637 N.Y.S.2d 69 [1996], lv. denied 88 N.Y.2d 876, 645 N.Y.S.2d 450, 668 N.E.2d 421 [1996] ).

We have considered and rejected defendant's constitutional arguments regarding both the legal sufficiency and jury charge issues.