PEOPLE v. BEST (2008)

Judgment, Supreme Court, New York County (Michael Corriero, J. at hearing;  Renee A. White, J. at jury trial and sentence), rendered June 19, 2007, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.   The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

 In this case of possession of a gravity knife (see Penal Law § 265.00[5] ), the court correctly instructed the jury that the knowledge element was defendant's knowledge that he possessed a knife, but not knowledge that the knife met the definition of a gravity knife (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];  cf. People v. Wood, --- A.D.3d ----, 869 N.Y.S.2d 401, 2008 N.Y. Slip Op. 09658, 2008 WL 5136610).   We have considered and rejected defendant's constitutional challenges to that instruction.

 The court properly exercised its discretion when it determined that unspecified expert testimony concerning design and manufacture of knives would not assist the jurors in determining whether the particular knife possessed by defendant had the characteristics of a gravity knife (see People v. Austin, 46 A.D.3d 195, 199-201, 845 N.Y.S.2d 315 [2007], lv. denied 9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008];  People v. Hall, 251 A.D.2d 242, 243, 673 N.Y.S.2d 317 [1998], lv. denied 92 N.Y.2d 982, 683 N.Y.S.2d 763, 706 N.E.2d 751 [1998] ).   Defense counsel's vague description of the proposed testimony did not warrant a conclusion that this testimony would have been admissible.   The court's proper exercise of its discretion did not violate defendant's right to present a defense (see Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The officer's observation of a clip and part of a knife protruding from defendant's pocket, which he believed to be a gravity knife based on prior experience, provided, at least, a founded suspicion of criminal activity, permitting the officer to make a non-forcible stop and a common-law inquiry.   Any body contact between the officer and defendant was minimal and did not constitute a seizure (see People v. Cherry, 30 A.D.3d 185, 816 N.Y.S.2d 450 [2006], lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [2006] ).   The officer properly asked if he could see the knife, and defendant consented (see People v. Casimey, 39 A.D.3d 228, 834 N.Y.S.2d 103 [2007], lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 486, 869 N.E.2d 662 [2007] ).

There was nothing constitutionally deficient about the court's interested witness charge concerning defendant's testimony (see People v. Blake, 39 A.D.3d 402, 403, 835 N.Y.S.2d 78 [2007], lv. denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007] ).