PEOPLE v. LEWIS (2012)

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered October 30, 2008, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and petit larceny, and sentencing him to an aggregate term of 1 to 3 years, unanimously affirmed.

Defendant was charged with criminal possession of a weapon in the third degree based on the elements of criminal possession of a weapon in the fourth degree, elevated to the present charged felony due to a prior conviction of attempted robbery in the second degree. His contention that the jury instructions failed to provide any definition of the phrase “dangerous instrument” is unpreserved (see People v. Dekle, 56 N.Y.2d 835, 837 [1982] ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. The theory of the defense at trial was that defendant did not intend to use the knife unlawfully, not that it did not constitute a dangerous instrument. Indeed, counsel characterized the knife as a “weapon” during his summation. Thus, given the failure to contest the knife's status, the court's instruction did not cause defendant any prejudice (People v. Wright, 270 A.D.2d 176 [2000], lv denied 94 N.Y.2d 954 [2000]; see also People v. Baker, 298 A.D.2d 104 [2002], lv denied 99 N.Y.2d 533 [2002] ).