| People v Birth |
| 2008 NY Slip Op 01993 [49 AD3d 290] |
| March 6, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jerome Birth, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 10,2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the thirddegree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence. The People proved the operability,within the meaning of the statute, of the gravity knife at issue (see Penal Law §265.00 [5]; § 265.01 [1]; § 265.02 [1]). An officer who tested the knife afterdefendant's arrest described the manner in which the knife operated, which conformed to thestatutory definition of a gravity knife. The officer similarly demonstrated the operability of theweapon in open court. The People had no obligation to prove that the knife would also functionas a gravity knife if the officer repeated the test while sitting down and using his weaker hand, assuggested by defense counsel at trial (see People v Smith, 309 AD2d 608 [2003], lvdenied 1 NY3d 580 [2003]). Defendant's other arguments on this issue are without merit.
The court correctly instructed the jury on the elements of the crime with which defendantwas charged (see People v Berrier, 223 AD2d 456 [1996], lv denied 88 NY2d876 [1996]).[*2]
We have considered and rejected defendant'sconstitutional arguments regarding both the legal sufficiency and jury charge issues.Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ.