People v. Berrier

223 A.D.2d 456, 637 N.Y.S.2d 69, 1996 N.Y. App. Div. LEXIS 489

Opinion

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered January 7, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 2V2 to 5 years and 1 year, and an unconditional discharge, respectively, unanimously affirmed.

The trial court correctly charged that in order to convict defendant of possessing a gravity knife, the prosecution had to prove that defendant knew he had a knife in his possession, not that he knew it was specifically a gravity knife, and that the knife fit the legal description of a gravity knife under Penal Law § 265.00 (5). Knowledge that the thing possessed answers the description of one of the prohibited instruments is not an element of third-degree criminal possession of a weapon (Penal Law § 265.02 [1]; People v Visarities, 220 App Div 657, 658, citing People v Persce, 204 NY 397; see also, People v Ansare, 96 AD2d 96, 97). Concur—Sullivan, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.