Opinion
2014-09-16
The PEOPLE of the State of New York, Respondent, v. Gennady POLONSKY, Defendant–Appellant.
Freeman, Nooter & Ginsberg, New York City (Louis M. Freeman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Emily L. Auletta of counsel), for respondent.
Freeman, Nooter & Ginsberg, New York City (Louis M. Freeman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City (Emily L. Auletta of counsel), for respondent.
Present: SCHOENFELD, J.P., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Judgment of conviction (Larry R.C. Stephen, J.), rendered April 3, 2012, reversed, on the law and the facts, and new trial ordered.
Defendant was tried on a charge of attempted criminal possession of a weapon in the fourth degree ( seePenal Law § 265.01[1] ) based on police allegations that he was observed in a subway station with a gravity knife clipped to his pants pocket. The centerpiece of defendant's trial defense was his contention that the knife in question did not meet the definitional requirements of a gravity knife, in that it did not open “by the force of gravity or the application of centrifugal force” ( seePenal Law § 265.00 [1] ). Defendant's timely request to elicit expert testimony on the operability issue, accompanied by a detailed offer of proof as to the expert's proposed testimony ( cf. People v. Best, 57 A.D.3d 279, 280, 869 N.Y.S.2d 426 [2008], lv. denied12 N.Y.3d 756, 876 N.Y.S.2d 707, 904 N.E.2d 844 [2009] ), should have been granted, at least to the extent of allowing defendant's expert to provide explanatory testimony as to the manner of operation of the knife in question ( see and compare People v. Herbin, 86 A.D.3d 446, 446, 447, 927 N.Y.S.2d 54 [2011], lv. denied17 N.Y.3d 859, 932 N.Y.S.2d 24, 956 N.E.2d 805 [2011] ). Such opinion evidence was probative of the key issue at trial—whether the subject knife had the characteristics of a gravity knife—a class of weapon fairly described as “esoteric” ( see Greenberg, Criminal Law, Firearms and Other Dangerous Weapons—Articles 265 and 400 § 33:4 )—and, as the trial court itself noted on the record, would not have caused any confusion.
While not central to the result we reach, we note that the better practice would have been to consider defendant's expert opinion motion prior to or during the presentation of the People's case, and not at the conclusion of the evidence at a time when the court had apparently already reached a verdict ( see generally People v. Austin, 46 A.D.3d 195, 198, 845 N.Y.S.2d 315 [2007], lv. denied9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] ).
Defendant's challenge to the court's suppression ruling is unpersuasive ( see People v. Fernandez, 16 N.Y.3d 596, 601–602, 925 N.Y.S.2d 393, 949 N.E.2d 484 [2011] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.