PEOPLE v. ELMASKENY (2021)

ORDERED that the judgment of conviction is reversed, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed, and the fines, if paid, are remitted.

Defendant was charged in an accusatory instrument with, among other things, criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). It was alleged therein that defendant had possessed a gravity knife and that defendant told the arresting officer that he used the knife for work. On May 14, 2019, defendant appeared with counsel and pleaded guilty to criminal possession of a weapon in the fourth degree in full satisfaction of all of the charges.

On appeal, defendant contends that the judgment should be reversed based on the amendment of Penal Law § 265.01 (1), which decriminalized possession of a gravity knife. Defendant argues that the change in the law should be applied retroactively because, among other things, he pleaded guilty 16 days prior to the effective date of the amended statute. In response, the People contend that, while it is clear that the amendment does not apply retroactively, they do not oppose reversal of defendant's conviction in the exercise of this court's interest of justice jurisdiction in light of this court's decision in People v Banos (68 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), as well as decisions from the Appellate Divisions in the First and Second Departments (see e.g. People v Johnson, 192 AD3d 603 [2021]; People v Merrill, 187 AD3d 1058 [2020]; People v Caviness, 176 AD3d 522 [2019]). Under the circumstances, as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]), we reverse the judgment of conviction and dismiss the accusatory instrument.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.