People v. Wesley

Decision Date21 December 1990
Citation565 N.Y.S.2d 342,168 A.D.2d 940
PartiesPEOPLE of the State of New York, Respondent, v. Harry C. WESLEY, Appellant.
CourtNew York Supreme Court — Appellate Division

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. denied 69 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.

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2 cases
  • Vett v. City of New York
    • United States
    • U.S. District Court — Southern District of New York
    • November 7, 2023
    ... ... manufactured a firearm. He also said, as he had said to ... Taylor, that Plaintiff was having “problems” with ... people in his office and had previously had arguments with ... coworkers. Id. ¶¶ 7, 9. The security ... director told Kelly that other ... unless the People prove that the firearm possessed by ... the defendant is operable.” People v. Wesley , ... 168 A.D.2d 940, 941, 565 N.Y.S.2d 342 (4th Dept. 1990); ... see Butler v. Annucci , No. 1:18-cv-00474, 2022 WL ... 7709486, ... ...
  • People v. Block
    • United States
    • New York Supreme Court — Appellate Division
    • December 21, 1990

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