| People v Best |
| 2008 NY Slip Op 09699 [57 AD3d 279] |
| December 11, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antoine Best, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael Corriero, J., at hearing; Renee A.White, J., at jury trial and sentence), rendered June 19, 2007, convicting defendant of criminalpossession of a weapon in the third degree, and sentencing him, as a second felony offender, to aterm of 2½ to 5 years, unanimously affirmed. The matter is remitted to Supreme Court,New York County, for further proceedings pursuant to CPL 460.50 (5).
In this case of possession of a gravity knife (see Penal Law § 265.00 [5]), thecourt correctly instructed the jury that the knowledge element was defendant's knowledge that hepossessed a knife, but not knowledge that the knife met the definition of a gravity knife (seePeople v Berrier, 223 AD2d 456 [1996], lv denied 88 NY2d 876 [1996]; cf.People v Wood, 58 AD3d 242 [2008]). We haveconsidered and rejected defendant's constitutional challenges to that instruction.
The court properly exercised its discretion when it determined that unspecified experttestimony concerning design and manufacture of knives would not assist the jurors indetermining whether the particular knife possessed by defendant had the characteristics of agravity knife (see People v Austin,46 AD3d 195, 199-201 [2007], lv denied 9 NY3d 1031 [2008]; People vHall, 251 AD2d 242, 243 [1998], lv denied 92 NY2d 982 [1998]). Defense counsel'svague description of the proposed testimony did not warrant a conclusion that this testimonywould have been admissible. The court's proper exercise of its discretion did not violatedefendant's right to present a defense (see Crane v Kentucky, 476 US 683, 689-690[1986]).
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). The officer's observation of a clip and part of a knifeprotruding from defendant's pocket, which he believed to be a gravity knife based on priorexperience, provided, at least, a founded suspicion of criminal activity, permitting the officer tomake a nonforcible stop and a common-law inquiry. Any body contact between the officer anddefendant was minimal and did not constitute a seizure (see People v Cherry, 30 AD3d 185 [2006], lv denied 7NY3d 811 [2006]). The officer properly asked if he could see the knife, and [*2]defendant consented (see People v Casimey, 39 AD3d 228 [2007], lv denied 8NY3d 983 [2007]).
There was nothing constitutionally deficient about the court's interested witness chargeconcerning defendant's testimony (seePeople v Blake, 39 AD3d 402, 403 [2007], lv denied 9 NY3d 873 [2007]).Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.