People v. Velez

• Decision Date: 19 March 1984
• Citation: 100 A.D.2d 603,473 N.Y.S.2d 556
• Parties: The PEOPLE, etc., Appellant, v. Augusto VELEZ, Thomas Morgan, Bradford Williams, Howard Spikes and James Blake, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 556

473 N.Y.S.2d 556

100 A.D.2d 603

The PEOPLE, etc., Appellant, v. Augusto VELEZ, Thomas Morgan, Bradford Williams, Howard Spikes and James Blake, Respondents.

Supreme Court, Appellate Division Second Department.

March 19, 1984.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Brian D. Foley, Brooklyn, of counsel), for appellant.

William E. Hellerstein, New York City (Mary Falk Horwitz, New York City, of counsel), for respondent Thomas Morgan.

Before BRACKEN, J.P., and BROWN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, entered September 22, 1981, which, upon defendant Morgan's motion to dismiss indictment no. 3015/80, dismissed said indictment as to all five defendants named therein.

Order reversed, on the law, motion denied, indictment reinstated, and matter remitted to the Supreme Court, Kings County, for further proceedings.

Defendants were charged with criminal possession of a weapon in the third degree (Penal Law, § 265.02). The underlying events occurred on August 30, 1980, when, pursuant to information connecting defendant Morgan's van with a million dollar jewelry robbery, Detectives George Yarbrough and Charles Healey stopped the van in which defendants were traveling. As Detective Healey moved toward the rear of the vehicle, "the two [rear] van doors parted as if to open and a hand came out of the rear and threw on the ground what appeared to be a dirty rag bundle landing maybe 12 to 14 inches from [Healey's] feet * * * [I]t contained a .22 caliber revolver [loaded] with five live rounds".

Criminal Term dismissed the indictment pursuant to CPL 210.20 (subd. 1, pars. [b], [c], [h] ) on the ground that the statutory automobile presumption (see Penal Law, § 265.15, subd. 3) was inapplicable, as a matter of law, to the facts of the case because the evidence demonstrated that "a particular arm and hand dropped the gun showing that a particular person actually possessed the [weapon]". The court reasoned that such positive evidence of actual possession by a particular individual, albeit unidentified, wholly dissipated the necessity for invocation of the statutory presumption (citing People v. Logan, 94 N.Y.S.2d 681, 683-684), and concluded that absent the benefit of the presumption, the admissible evidence was legally insufficient to sustain a conviction.

We disagree.

The statutory presumption afforded by subdivision 3 of section 265.15 of the Penal Law provides in pertinent part: "The presence in an automobile * * * of any firearm * * * is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon * * * is found, except * * * (a) if such weapon * * * is found upon the person of one of the occupants therein". The presumption establishes a prima facie case against a defendant, who may, if he chooses, rebut it by interposing evidence to the contrary (People v. Lemmons, 40 N.Y.2d 505, 510, 387 N.Y.S.2d 97, 354 N.E.2d 836; People v. Jones, 57 A.D.2d 595, 393 N.Y.S.2d 606). It is not conclusive even where no...