People v. England (Martin)

74 Misc. 3d 127(A), 2022 NY Slip Op 50051(U)

Opinion

People v England (2022 NY Slip Op 50051(U)) [*1]

People v England (Martin)

2022 NY Slip Op 50051(U) [74 Misc 3d 127(A)]

Decided on January 21, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 21, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1332 K CR

The People of the State of New York, Respondent,

against

Martin England, Appellant.

Appellate Advocates (Kendra Hutchinson of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), rendered October 24, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the fourth degree, and imposed sentence.

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

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 specifically alleged that defendant had possessed a gravity knife. On October 24, 2018, defendant pleaded guilty to criminal possession of a weapon in the fourth degree in full satisfaction of the accusatory instrument, and sentence was imposed.On appeal, defendant contends that the judgment should be reversed based on the amendment of Penal Law § 265.01 (1), which should be applied retroactively, as it [*2]decriminalized possession of a gravity knife. In the alternative, defendant asks that the judgment be reversed and the accusatory instrument dismissed in the interest of justice. The People concede that the judgment of conviction should be reversed and the accusatory instrument dismissed in the interest of justice.

On May 30, 2019, Penal Law § 265.01 was amended by removing gravity knives from subsection one thereof (see L 2019, ch 34, § 1 [eff May 30, 2019]). Under the circumstances presented, 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 (see e.g. People v Johnson, 192 AD3d 603 [2021]; People v Merrill, 187 AD3d 1058 [2020]; People v Caviness, 176 AD3d 522 [2019]; People v Banos, 68 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 21, 2022