People v Polonsky (Gennady)

[*1] People v Polonsky (Gennady) 2014 NY Slip Op 24265 Decided on September 16, 2014 Appellate Term, 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 printed Miscellaneous Reports.

Decided on September 16, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P. Shulman, Hunter, Jr., JJ.
570486/13

The People of the State of New York, Respondent,

against

Gennady Polonsky, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Larry R.C. Stephen, J.), rendered April 3, 2012, after a nonjury trial, convicting him of attempted criminal possession of a weapon in the fourth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Larry R.C. Stephen, J.), rendered April 3, 2012, reversed, on the law and the facts, and new trial ordered.

Defendant was tried on a charge of attempted criminal possession of a weapon in the fourth degree (see Penal Law § 265.01[1]) based on police allegations that he was observed in a subway station with a gravity knife clipped to his pants pocket. The centerpiece of defendant's trial defense was his contention that the knife in question did not meet the definitional requirements of a gravity knife, in that it did not open "by the force of gravity or the application of centrifugal force" (see Penal Law § 265.00[1]). Defendant's timely request to elicit expert testimony on the operability issue, accompanied by a detailed offer of proof as to the expert's proposed testimony (cf. People v Best, 57 AD3d 279, 280 [2008], lv denied 12 NY3d 756 [2009]), should have been granted, at least to the extent of allowing defendant's expert to provide explanatory testimony as to the manner of operation of the knife in question (see and compare People v Herbin, 86 AD3d 446, 446, 447 [2011], lv denied 17 NY3d 859 [2011]). Such opinion evidence was probative of the key issue at trial — whether the subject knife had the characteristics of a gravity knife — a class of weapon fairly described as "esoteric" (see Greenberg, Criminal Law, Firearms and Other Dangerous Weapons — Articles 265 and 400 § 33:4 [6 NY Prac Series 2014]) — and, as the trial court itself noted on the record, would not have caused any confusion.

While not central to the result we reach, we note that the better practice would have been to consider defendant's expert opinion motion prior to or during the presentation of the People's case, and not at the conclusion of the evidence at a time when the court had apparently already reached a verdict (see generally People v Austin, 46 AD3d 195, 198 [2007], lv denied 9 NY3d 1031 [2008]).

Defendant's challenge to the court's suppression ruling is unpersuasive (see People v Fernandez, 16 NY3d 596, 601-602 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: September 16, 2014