| People v Lewis |
| 2012 NY Slip Op 00818 [92 AD3d 442] |
| February 7, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alexander Lewis, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered October30, 2008, convicting defendant, after a jury trial, of criminal possession of a weapon in the thirddegree and petit larceny, and sentencing him to an aggregate term of 1 to 3 years, unanimouslyaffirmed.
Defendant was charged with criminal possession of a weapon in the third degree based on theelements of criminal possession of a weapon in the fourth degree, elevated to the present chargedfelony due to a prior conviction of attempted robbery in the second degree. His contention thatthe jury instructions failed to provide any definition of the phrase "dangerous instrument" isunpreserved (see People v Dekle, 56 NY2d 835, 837 [1982]), and we decline to review itin the interest of justice. As an alternative holding, we reject it on the merits. The theory of thedefense at trial was that defendant did not intend to use the knife unlawfully, not that it did notconstitute a dangerous instrument. Indeed, counsel characterized the knife as a "weapon" duringhis summation. Thus, given the failure to contest the knife's status, the court's instruction did notcause defendant any prejudice (People v Wright, 270 AD2d 176 [2000], lv denied94 NY2d 954 [2000]; see also People v Baker, 298 AD2d 104 [2002], lv denied99 NY2d 533 [2002]). Concur—Tom, J.P., Andrias, Acosta, Freedman and Richter, JJ.