People v. Wesley

Appellate Division of the Supreme Court of New York

People v. Wesley

168 A.D.2d 940, 565 N.Y.S.2d 342, 1990 N.Y. App. Div. LEXIS 16484

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1990

StatusPublished

Cited by1 cases

This text of 168 A.D.2d 940 (People v. Wesley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Wesley, 168 A.D.2d 940, 565 N.Y.S.2d 342, 1990 N.Y. App. Div. LEXIS 16484 (N.Y. Ct. App. 1990).

Pincite

Opinion

Judgment unanimously reversed on the law and new trial granted. 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 [941]*941(People v Cavines, 70 NY2d 882; People v Shaffer, 66 NY2d 663, 664; People v Wearing, 126 AD2d 586, lv denied 69 NY2d 888; People v Actie, 99 AD2d 815).

We also note that it was error for the trial court to admit testimony concerning defendant’s pretrial silence (see, People v Conyers, 52 NY2d 454). (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J.—criminal possession of weapon, third degree.) Present—Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment unanimously reversed on the law and new trial granted. 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 [941]*941(People v Cavines, 70 NY2d 882; People v Shaffer, 66 NY2d 663, 664; People v Wearing, 126 AD2d 586, lv denied 69 NY2d 888; People v Actie, 99 AD2d 815).

We also note that it was error for the trial court to admit testimony concerning defendant’s pretrial silence (see, People v Conyers, 52 NY2d 454). (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J.—criminal possession of weapon, third degree.) Present—Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

168 A.D.2d 940, 565 N.Y.S.2d 342, 1990 N.Y. App. Div. LEXIS 16484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wesley-nyappdiv-1990.

Opinion

Related

Cite This Page — Counsel Stack