People v. Wesley

• Decision Date: 21 December 1990
• Citation: 565 N.Y.S.2d 342,168 A.D.2d 940
• Parties: PEOPLE of the State of New York, Respondent, v. Harry C. WESLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 342

565 N.Y.S.2d 342

168 A.D.2d 940

PEOPLE of the State of New York, Respondent, v.Harry C. WESLEY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 21, 1990.

Linda S. Reynolds by Carolyn Balowitz, Buffalo, for appellant.

Kevin M. Dillon by G. Michael Damacich, Buffalo, for respondent.

Before DOERR, J.P., and BOOMER, PINE, BALIO and LAWTON, JJ.

MEMORANDUM:

Defendant's convictions of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [4] must be reversed because the trial court refused to instruct the jury, at defendant's request, that the burden was on the People to prove that the firearm possessed by the defendant was operable.Although the definition of firearm does not include the requirement that it be operable, courts have held that a person cannot be convicted of criminal possession of a weapon under Penal Law § 265.02(1) and (4) unless the People prove that the firearm possessed by the defendant is operable (People v. Cavines, 70 N.Y.2d 882, 524 N.Y.S.2d 178, 518 N.E.2d 1170;People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823;People v. Wearing, 126 A.D.2d 586, 510 N.Y.S.2d 707, lv. denied69 N.Y.2d 888, 515 N.Y.S.2d 1037, 507 N.E.2d 1107;People v. Actie, 99 A.D.2d 815, 472 N.Y.S.2d 147).

We also note that it was error for the trial court to admit testimony concerning defendant's pretrial silence (see, People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933).

Judgment unanimously reversed on the law and new trial granted.