People v Herbin

People v Herbin 2011 NY Slip Op 05933 Decided on July 14, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 14, 2011
Gonzalez, P.J., Tom, Acosta, Richter, Román, JJ.
4548 481/08

[*1]The People of the State of New York, Respondent,

v

Reginald Herbin, Defendant-Appellant.



 
Steven Banks, The Legal Aid Society, New York (Denise
Fabiano of counsel), and Simpson Thacher & Bartlett LLP, New
York (Taamiti Bankole of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha
Chanda of counsel), for respondent.

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 third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, 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 of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). Although defendant's expert testified that the knife possessed by defendant could be opened by pressing a thumb disk, he also testified that he observed the officers release the blade simply by flicking the knife with their wrists, which satisfies 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 to felony]) is not unconstitutionally vague. The statute defines a gravity knife as "any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application 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 to the public and clear guidelines to law enforcement as to the precise characteristics that bring a knife 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 offering expert testimony concerning the meanings of several physics concepts. The proposed testimony would likely have confused the jury by defining centrifugal force inconsistently with the statutory definition of a gravity knife, and by introducing other physics terms that are not pertinent to the elements of the offense. Moreover, the court adequately instructed the jury as to the definition of a gravity knife such that any technical knowledge outside the ken of the typical juror was unnecessary (see People v Taylor, 75 NY2d 277, 288 [1990]).

The court also correctly instructed the jury that, to convict defendant of criminal possession of 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 (see Neal, 79 AD3d at 524; People v Best, 57 AD3d 279, 280 [2008], lv denied 12 NY3d 756 [2009]; see also People v Wood, 58 AD3d 242, 253 n 5 (2008), lv denied 12 NY3d 823 [2009]).

The court properly rejected defendant's other requests for jury instructions. The proposed instructions would have added new elements to the definition of gravity knife. That is the province of the Legislature, not the courts.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 14, 2011

DEPUTY CLERK