People v. Free

• Decision Date: 18 November 1996
• Citation: 233 A.D.2d 463,650 N.Y.S.2d 257
• Parties: The PEOPLE, etc., Respondent, v. Timothy FREE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 257

650 N.Y.S.2d 257

233 A.D.2d 463

The PEOPLE, etc., Respondent, v. Timothy FREE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 18, 1996.

Daniel L. Greenberg, New York City (William B. Carney, of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie, Jeanette Lifschitz, Christina Hanophy, Linda Cantoni, and Joseph K. Donovan, of counsel), for respondent.

Before BRACKEN, J.P., and THOMPSON, GOLDSTEIN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered January 6, 1993, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The defendant was arrested after the car in which he was a passenger was pulled over by two police officers. A search of the vehicle uncovered several weapons, including a 9-millimeter pistol which was discovered under the front seat where the defendant had been sitting. Upon inspection, the police ascertained that the pistol's serial numbers had been defaced.

The defendant was subsequently charged with, and convicted of, criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02(3) for possessing a defaced firearm. On appeal, the defendant contends, inter alia, that there was insufficient evidence to prove beyond a reasonable doubt that he knew the weapon was defaced.

We agree that the People failed to present legally sufficient evidence that the defendant was aware the firearm was defaced (cf., People v. Butler, 192 A.D.2d 543, 596 N.Y.S.2d 93). Notably, the court's charge, to which the People voiced no objection (see, People v. Malagon, 50 N.Y.2d 954, 431 N.Y.S.2d 460, 409 N.E.2d 934), specifically instructed the jury, inter alia, that the People were obligated to prove as a separate element of the crime that the defendant was aware that the firearm had been defaced. While the court charged the jury that it could presume the defendant possessed the firearm by virtue of his presence in the automobile (see, Penal Law § 265.15[3] ), its charge did not include any reference to the firearm's defaced condition. Accordingly, the presumption as...