People v. Vinent

141 A.D.3d 454, 34 N.Y.S.3d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 2016
• Docket: 785 4710/13
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 22, 2014, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the second felony offender adjudication and remanding for resentencing, and otherwise affirmed.

In this gravity knife case, defendant’s challenge to the court’s instruction on the knowledge element of weapons possession is unpreserved and we decline to review it in the interest of justice. The record does not support defendant’s assertion that he preserved the issue during a colloquy over a jury note. As an alternative holding, we find that the court correctly instructed the jury (see People v Parrilla, 27 NY3d 400 [2016], affg 112 AD3d 517 [1st Dept 2013]).

Since it is undisputed that defendant’s Florida conviction did not qualify as a predicate felony conviction, we exercise our interest of justice jurisdiction accordingly. On remand, the People may allege a different prior felony conviction, if there is one, as the basis for a predicate felony adjudication.

Concur— Friedman, J.P., Sweeny, Saxe, Richter and Kahn, JJ.