Opinion
2019-02150 Ind. No. 18-00607
10-21-2020
The PEOPLE, etc., respondent, v. Javon MERRILL, appellant.
Adam Seiden, Mount Vernon, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jill Oziemblewski and Steven A. Bender of counsel), for respondent.
Adam Seiden, Mount Vernon, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jill Oziemblewski and Steven A. Bender of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered January 31, 2019, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, the indictment is dismissed, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent with CPL 160.50.
On November 29, 2018, during his plea allocution to attempted criminal possession of a weapon in the third degree (see Penal Law §§ 110.00, 265.02[1] ), the defendant admitted that on or about January 9, 2018, he attempted to possess a gravity knife. On January 31, 2019, pursuant to his negotiated plea agreement, the defendant was sentenced to an indeterminate term of imprisonment of 1½ to 3 years.
The defendant contends that the judgment of conviction should be reversed because, inter alia, shortly after his conviction, Penal Law § 265.01(1) was amended to decriminalize the simple possession of a gravity knife. The People, in the exercise of their broad prosecutorial discretion, agree that the judgment should be vacated and the indictment dismissed. Even though the statute decriminalizing the simple possession of a gravity knife did not take effect until May 30, 2019 (see L 2019, ch 34, § 1), under the circumstances of this case, we vacate the judgment and dismiss the indictment, as a matter of discretion in the exercise of our interest of justice jurisdiction (see CPL 470.15[6] ; People v. Alston, 184 A.D.3d 415, 123 N.Y.S.3d 495 ; People v. Caviness, 176 A.D.3d 522, 108 N.Y.S.3d 838 ).
MASTRO, J.P., MILLER, MALTESE and WOOTEN, JJ., concur.