Opinion
571157/02.
Decided September 16, 2004.
Defendant appeals from a judgment of the Criminal Court, New York County, rendered November 25, 2002 after a jury trial (Patricia M. Nunez at suppression hearing; Robert M. Stolz, J. at trial) convicting him of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), and imposing sentence.
Judgment of conviction rendered November 25, 2002 (Patricia M. Nunez, J. at suppression hearing; Robert M. Stolz, J. at trial) affirmed.
PRESENT: HON. WILLIAM J. DAVIS, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 NY2d 759, 761). The credible evidence established that the arresting police officer observed a knife containing what he recognized as a "locking mechanism" — later confirmed to be a gravity knife — in plain view in a partially opened plastic bag in defendant's possession. Thus, at a minimum, the officer was justified in securing the knife to insure his safety ( see People v. Nials, 209 AD2d 324, 325, lv denied 85 NY2d 912).
Defendant's challenge to the legal sufficiency of the evidence supporting his weapon possession conviction is unpreserved for appellate review in that defendant failed to raise any such claim in his motion for a trial order of dismissal ( People v. Gray, 86 NY2d 10). Were we to review this claim in the interest of justice, we would find the People's unrebutted proof of defendant's exclusive possession of the gravity knife to be sufficient to establish the knowledge element of the weapon possession count as charged to the jury ( see People v. Reisman, 29 NY2d 278, 285).
This constitutes the decision and order of the court.