Opinion
07-14-2016
The PEOPLE of the State of New York, Respondent, v. Pedro VINENT, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel) and Kramer Levin Naftalis & Frankel LLP, New York (Noah Hertz–Bunzl of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel) and Kramer Levin Naftalis & Frankel LLP, New York (Noah Hertz–Bunzl of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.
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 N.Y.3d 400, 33 N.Y.S.3d 842, 53 N.E.3d 719 [2016], affg. 112 A.D.3d 517, 977 N.Y.S.2d 29 [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.
FRIEDMAN, J.P., SWEENY, SAXE, RICHTER, KAHN, JJ., concur.