| People v Parrilla |
| 2013 NY Slip Op 08509 [112 AD3d 517] |
| December 19, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Elliot Parrilla, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel),for respondent.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), renderedJuly 7, 2012, as amended July 24, 2012, convicting defendant, after a jury trial, ofcriminal possession of a weapon in the third degree, and sentencing him, as a secondfelony offender, to a term of 2½ to 5 years, unanimously affirmed.
The verdict was not against the weight of the evidence. The evidence established theoperability of the gravity knife at issue within the meaning of the statute (seePenal Law § 265.00 [5]). An officer who tested the knife described the manner inwhich it operated, and also demonstrated its operability in court (see People v Neal, 79 AD3d523, 524 [1st Dept 2010], lv denied 16 NY3d 799 [2011]; People v Birth, 49 AD3d290 [1st Dept 2008], lv denied 10 NY3d 859 [2008]).
The court properly instructed the jury that the knowledge element would be satisfiedby proof establishing defendant's knowledge that he possessed a knife in general, and didnot require proof of defendant's knowledge that the knife met the statutory definition of agravity knife (see Neal, 79 AD3d at 524; People v Berrier, 223 AD2d456 [1st Dept 1996], lv denied 88 NY2d 876 [1996]).
After sufficient inquiry, the court properly determined that a deliberating juror wasnot "grossly unqualified" (CPL 270.35 [1]), and it properly exercised its discretion indeclining to discharge the juror, a remedy that would have necessitated a mistrial underthe circumstances. The juror expressed a concern about the fact that she lived in the samearea where, according to defendant's testimony, his former girlfriend resided. However,upon further questioning, the juror unequivocally confirmed that she would follow thecourt's instructions, and that her proximity to defendant's ex-girlfriend's residence wouldnot affect the juror's evaluation of the evidence. Thus, the record supports the conclusionthat there was no basis to disqualify the juror (see People v Mejias, 21 NY3d 73, 79 [2013]; People vBuford, 69 NY2d 290, 298-299 [1987]). Defendant did not preserve his challengesto the manner or sufficiency of the court's inquiry of the juror (see People vOcasio, 258 AD2d 303 [1st Dept 1999], lv denied 93 NY2d 975 [1999]),and we decline to review them in the interest of justice. As an alternative [*2]holding, we also reject them on the merits. The record doesnot support defendant's assertions that the court's manner of questioning was coercive, orthat the juror displayed fear and anxiety that required further inquiry.
We perceive no basis for reducing the sentence. Concur—Tom, J.P.,Friedman, Renwick, Feinman and Clark, JJ.