People v. McIlwain

204 A.D.2d 491, 611 N.Y.S.2d 643

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered November 6, 1991, convicting him of criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the facts, 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.

We agree with the defendant that the jury’s verdict on the count of criminal possession of a weapon in the fourth degree was against the weight of the evidence. Under the circumstances of this case, where the jury returned a verdict of not guilty on the robbery and related charges, we find that the People failed to prove that the defendant possessed a knife with the intent to use it unlawfully against another person (see, People v Barlow, 172 AD2d 546; People v Green, 113 AD2d 713). Therefore, the judgment is reversed and the indictment is dismissed. Thompson, J. P., Sullivan, Ritter and Friedmann, JJ., concur.