People v. Berrier

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1996
• Status: Published

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.