People v Vinent

People v Vinent 2016 NY Slip Op 05544 Decided on July 14, 2016 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, 2016
Friedman, J.P., Sweeny, Saxe, Richter, Kahn, JJ.
785 4710/13

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

v

Pedro Vinent, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel) and Kramer Levin Naftalis & Frankel LLP, New York (Noah Hertz-Bunzl of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 22, 2014, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the second felony offender adjudication and remanding for resentencing, and otherwise affirmed.

In this gravity knife case, defendant's challenge to the court's instruction on the knowledge element of weapons possession is unpreserved and we decline to review it in the interest of justice. The record does not support defendant's assertion that he preserved the issue during a colloquy over a jury note. As an alternative holding, we find that the court correctly instructed the jury (see People v Parrilla, __ NY3d __, 2016 NY Slip Op 03417 [2016], affg 112 AD3d 517 [1st Dept 2013]).

Since it is undisputed that defendant's Florida conviction did not qualify as a predicate felony conviction, we exercise our interest of justice jurisdiction accordingly. On remand, the People may allege a different prior felony conviction, if there is one, as the basis for a predicate felony adjudication.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 14, 2016

CLERK