People v. Kinred

18 A.D.2d 1086, 239 N.Y.S.2d 439, 1963 N.Y. App. Div. LEXIS 3989

Opinion

Appeal by the People from an order of the Supreme Court, Kings County, dated September 17, 1962, which granted defendant’s motion and dismissed an indictment charging him with the crime of carrying a dangerous weapon as a felony (Penal Law, § 1897, subd. 1). Order reversed, on the law and the facts, motion denied, and indictment reinstated. In our opinion, the evidence presented to the Grand Jury was legally sufficient to establish a prima facie case of a violation of subdivision 1 of section 1897 of the Penal Law. “ In the clearest of terms the statute [Code Grim. Pro., § 251] states that the determination as to whether a trial jury would convict upon the evidence is specifically relegated by the Legislature to the judgment of the Grand Jury ” (People v. Peetz, 7 N Y 2d 147, 149). That a trial jury might not necessarily convict on this evidence is not our concern (People v. Eckert, 2 N Y 2d 126, 129). Furthermore, in view of the fact that the instrument or weapon possessed by the defendant, i.e., a 15 to 18-inch knife, is one which is specifically enumerated in subdivision 1 of section 1897 of the Penal Law, the possession thereof is presumptive evidence of unlawful intent, pursuant to the provisions of section 1898 of the Penal Law (cf. People v. Adamkiewicz, 298 N. Y. 176; People v. Persce, 204 N. Y. 397). Ughetta, Acting P. J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.