People v. Parrilla

• Decision Date: 19 December 2013
• Citation: 112 A.D.3d 517,2013 N.Y. Slip Op. 08509,977 N.Y.S.2d 29
• Parties: The PEOPLE of the State of New York, Respondent, v. Elliot PARRILLA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 517

977 N.Y.S.2d 29

2013 N.Y. Slip Op. 08509

The PEOPLE of the State of New York, Respondent,

v.Elliot PARRILLA, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 19, 2013.

Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

TOM, J.P., FRIEDMAN, RENWICK, FEINMAN, CLARK, JJ.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 7, 2012, as amended July 24, 2012, 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 2 1/2 to 5 years, unanimously affirmed.

The verdict was not against the weight of the evidence. The evidence established the operability 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 in which it operated, and also demonstrated its operability in court ( see People v. Neal, 79 A.D.3d 523, 524, 913 N.Y.S.2d 192 [1st Dept. 2010], lv. denied16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011]; People v. Birth, 49 A.D.3d 290, 853 N.Y.S.2d 317 [1st Dept. 2008], lv. denied10 N.Y.3d 859, 860 N.Y.S.2d 486, 890 N.E.2d 249 [2008] ).

The court properly instructed the jury that the knowledge element would be satisfied by proof establishing defendant's knowledge that he possessed a knife in general, and did not require proof of defendant's knowledge that the knife met the statutory definition of a gravity knife ( see Neal, 79 A.D.3d at 524, 913 N.Y.S.2d 192; People v. Berrier, 223 A.D.2d 456, 637 N.Y.S.2d 69 [1st Dept. 1996], lv. denied88 N.Y.2d 876, 645 N.Y.S.2d 450, 668 N.E.2d 421 [1996] ).

After sufficient inquiry, the court properly determined that a deliberating juror was not “grossly unqualified” (CPL 270.35[1] ), and it properly exercised its discretion in declining to discharge the juror, a remedy that would have necessitated a mistrial under the circumstances. The juror expressed a concern about the fact that she lived in the same area where, according to defendant's testimony, his former girlfriend resided. However, upon further questioning, the juror unequivocally confirmed that she would follow the court's instructions, and that her proximity to defendant's ex-girlfriend's residence would not affect the juror's evaluation of the evidence. Thus, the record supports the conclusion that there was no basis to disqualify the juror ( see People v. Mejias, 21 N.Y.3d 73, 79, 966 N.Y.S.2d 764, 989 N.E.2d 26 [2013]; People v. Buford, 69 N.Y.2d 290, 298–299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ). Defendant did not preserve his challenges to...