Opinion
2017–02875 Ind.No. 1023/16
03-27-2019
The PEOPLE, etc., Respondent, v. Cristo A. SAURI, Appellant.
Paul Skip Laisure, New York, N.Y. (Melissa Lee of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and John S. MacGregor of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Melissa Lee of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and John S. MacGregor of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the facts, by vacating the conviction of criminal possession of a weapon in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).
The defendant was convicted, after a jury trial, inter alia, of criminal possession of a weapon in the third degree (hereinafter the weapon charge) (see Penal Law § 265.02[1] ) for possessing what was alleged to be a "[g]ravity knife" ( Penal Law § 265.00[5] ). On appeal, the defendant contends that the evidence was legally insufficient to establish that the knife was a gravity knife and that the jury's finding of guilt on the weapon charge was against the weight of the evidence.
Penal Law § 265.00(5) defines a "[g]ravity knife" as a "knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device." "[A] gravity knife, as so defined, requires that the blade lock in place automatically upon its release and without further action by the user" ( People v. Zuniga, 303 A.D.2d 773, 774, 759 N.Y.S.2d 86 ).
The defendant did not preserve for appellate review his contention that the evidence as to the weapon charge is legally insufficient on the ground that the People did not prove that the blade of the knife that he possessed, "when released, is locked in place by means of a button, spring, lever or other device" ( Penal Law § 265.00[5] ; see generally People v. Hawkins , 11 N.Y.3d 484, 492–493, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). Nevertheless, upon request, we must review the record as, in effect, a "second jury" ( People v. Delamota , 18 N.Y.3d 107, 117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; see People v. Kancharla , 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 ; People v. Romero , 7 N.Y.3d 633, 644 n 2, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; cf. People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ) to determine whether the verdict was against the weight of the evidence (see CPL 470.15[5] ; People v. Andujar , 166 A.D.3d 893, 86 N.Y.S.3d 508 ). A necessary part of that review is an evaluation of whether the evidence introduced at trial proved all of the elements of the charged crime (see People v. Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Marsden , 130 A.D.3d 945, 947, 16 N.Y.S.3d 563 ; People v. Heatley , 116 A.D.3d 23, 27, 980 N.Y.S.2d 701 ).
The record before us does not establish that the defendant's knife was a gravity knife. Although an officer demonstrated the operation of the knife at trial, the record contains "no contemporaneous description of what the jury saw" during that demonstration ( People v. McKinnon , 15 N.Y.3d 311, 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 ). Further, there is no other evidence in the record that established whether or how the blade locked. In short, the People failed to create a record proving that the knife satisfied the statutory definition of a gravity knife (see id. at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 ). Thus, the weight of the evidence before us does not support a finding that the defendant's knife was, in fact, a gravity knife (see Penal Law § 265.00[5] ; see e.g. People v. Alvarez , 76 A.D.3d 1098, 1098–1099, 908 N.Y.S.2d 249, revd on other grounds , 20 N.Y.3d 75, 955 N.Y.S.2d 846, 979 N.E.2d 1173 ; People v. Zuniga , 303 A.D.2d at 774, 759 N.Y.S.2d 86 ; People v. Mashaw , 66 A.D.2d 955, 411 N.Y.S.2d 455 ; People v. Dolson , 142 Misc.2d 779, 538 N.Y.S.2d 393 [County Ct., Onondaga County] ; cf. People v. Neal , 79 A.D.3d 523, 524, 913 N.Y.S.2d 192 ). Accordingly, we vacate the conviction of criminal possession of a weapon in the third degree, vacate the sentence imposed thereon, and dismiss that count of the indictment (see CPL 470.20[5] ).
BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.