| People v Herbin |
| 2011 NY Slip Op 05933 [86 AD3d 446] |
| July 14, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Reginald Herbin, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 10,2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the thirddegree and criminal possession of a controlled substance in the seventh degree, and sentencinghim, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348 [2007]). Although defendant's expert testified that theknife possessed by defendant could be opened by pressing a thumb disk, he also testified that heobserved the officers release the blade simply by flicking the knife with their wrists, whichsatisfies the definition of a gravity knife (see People v Neal, 79 AD3d 523, 524 [2010]).
Contrary to defendant's claim, the statutory prohibition of possession of a gravity knife(Penal Law § 265.01 [1]; see also Penal Law § 265.02 [1] [elevating tofelony]) is not unconstitutionally vague. The statute defines a gravity knife as "any knife whichhas a blade which is released from the handle or sheath thereof by the force of gravity or theapplication of centrifugal force which, when released, is locked in place by means of a button,spring, lever or other device" (Penal Law § 265.00 [5]). This language provides notice tothe public and clear guidelines to law enforcement as to the precise characteristics that bring aknife under the statutory proscription (see People v Stuart, 100 NY2d 412, 420-421[2003]).
The court properly exercised its discretion in precluding a physics professor from offeringexpert testimony concerning the meanings of several physics concepts. The proposed testimonywould likely have confused the jury by defining centrifugal force inconsistently with the statutorydefinition of a gravity knife, and by introducing other physics terms that are not pertinent to theelements of the offense. Moreover, the court adequately instructed the jury as to the definition ofa gravity knife such that any technical knowledge outside the ken of the typical juror wasunnecessary (see People v Taylor, 75 NY2d 277, 288 [1990]).
The court also correctly instructed the jury that, to convict defendant of criminal possessionof a weapon in the third degree, it was required to find that he knew he possessed a [*2]knife, but did not have to know it was a gravity knife (seeNeal, 79 AD3d at 524; People vBest, 57 AD3d 279, 280 [2008], lv denied 12 NY3d 756 [2009]; see also People v Wood, 58 AD3d242, 253 n 5 [2008], lv denied 12 NY3d 823 [2009]).
The court properly rejected defendant's other requests for jury instructions. The proposedinstructions would have added new elements to the definition of gravity knife. That is theprovince of the Legislature, not the courts. Concur—Gonzalez, P.J., Tom, Acosta, Richterand RomÁn, JJ.