People v. Smith , 765 N.Y.S.2d 777 ( 2003 )

Judgment, Supreme Court, New York County (Charles Tejada, J., at suppression hearing; Joan Sudolnik, J., at jury trial and sentence), rendered June 21, 2001, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, and judgment, same court (Joan Sudolnik, J., at plea; Charles Solomon, J., at sentence), rendered August 2, 2001, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a concurrent term of 4V2 to 9 years, unanimously affirmed.

The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The People proved the operability of the gravity knife which formed the basis of defendant’s conviction of criminal possession of a weapon in the third degree (Penal Law § 265.00 [5]; § 265.01 [1]; § 265.02 [1]). A detective twice demonstrated the operability of the weapon in open court, and the fact that the knife malfunctioned on some of the detective’s attempts to operate it did not defeat the proof of operability (see People v Cavines, 70 NY2d 882 [1987]; People v Velez, 278 AD2d 53 [2000], lv denied 96 NY2d 808 [2001]).

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Concur — Andrias, J.P., Ellerin, Williams, Lerner and Gonzalez, JJ.