Opinion
October 5, 1992
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the evidence adduced at trial was legally insufficient to support the conviction is unpreserved for appellate review (see, CPL 470.05). In any event, viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15), since the jury was permitted to infer from the defendant's possession of the knife in question that he intended to use it unlawfully against another (see, Penal Law § 265.15; People v Gillespie, 168 A.D.2d 567, 568; Matter of Jamie D., 59 N.Y.2d 589).
The defendant further contends that the trial court committed reversible error when it charged the jury, pursuant to Penal Law § 265.15 (4), that unlawful intent on the part of the defendant could be inferred from his possession of "a knife". This instruction, he asserts, precluded the jury from making a threshold determination that the knife used by the defendant was, in fact, a "dangerous knife" within the meaning of Penal Law § 265.15 (4). His failure to make an appropriate objection to the charge as given, however, renders this issue unpreserved for our review (see, CPL 470.05; People v McKenzie, 67 N.Y.2d 695, 697; People v Arogundy, 112 A.D.2d 1003). In any event, we find his argument untenable. Although the Penal Law fails to define "dangerous knife" (see, Penal Law § 10.00), we find that the trial evidence clearly established that the knife in question was, inherently, a weapon, and not a utilitarian knife (see, Matter of Jamie D., 59 N.Y.2d 589, 592, supra; People v Slade, 140 A.D.2d 885, 887). Moreover, the defendant's behavior demonstrated his subjective belief that his knife was, indeed, a weapon, and thus, a "dangerous knife" within the meaning of this statute (see, Matter of Jamie D., supra).
The defendant has properly preserved his final contention that the verdict was repugnant, since he alerted the trial court to the possible error prior to the jury's discharge, thereby affording that court an opportunity to resubmit the matter to the jury to obtain a consistent verdict (see, People v Alfaro, 66 N.Y.2d 985; People v Satloff, 56 N.Y.2d 745). However, upon our review of the elements of the crimes as charged by the trial court, and without regard to the particular facts of the case, we find that the jury's verdict was not repugnant (see, People v Johnson, 70 N.Y.2d 819, 820; People v Green, 71 N.Y.2d 1006, 1008), since the defendant's acquittal on the assault counts did not negate an essential element of the weapon possession count (see, People v Vulpis, 173 A.D.2d 582, 583; People v Rios, 150 A.D.2d 620). Mangano, P.J., Harwood, Miller and Santucci, JJ., concur.