Opinion
March 11, 1986
Appeal from the Family Court, New York County (Bruce M. Kaplan, J.).
The adjudication was grounded on a finding that appellant had allegedly committed an act which, if done by an adult, would have constituted attempted criminal possession of a firearm in the fourth degree. Police had stopped the livery cab and ordered the 15-year-old appellant and the three other passengers (two of whom were adults) out of the back seat. The police then seized a sawed-off rifle which was open to view in the back seat.
Simple possession of a firearm constitutes criminal possession of a weapon in the fourth degree (Penal Law § 265.01). However, inasmuch as appellant was not in physical possession of the rifle when he was arrested, possession was presumed because he was an occupant in the car at the time (Penal Law § 265.15). The Family Court's finding that appellant was guilty of attempted criminal possession of a weapon in the fourth degree is a contradiction in terms, inasmuch as the underlying crime was based on a statutory presumption rather than on intent, and there can be no attempt to commit a crime in the absence of an intent to do so (Penal Law § 110.00; People v. Foster, 19 N.Y.2d 150, 152; People v. Hassin, 48 A.D.2d 705).
The Corporation Counsel candidly concedes the fictitious nature of an attempt to commit a crime where intent has been replaced by a statutory presumption, and concurs that this charge should be dismissed, notwithstanding appellant's failure to object to the finding of attempted possession at the Family Court hearing.
Concur — Murphy, P.J., Sandler, Fein, Milonas and Ellerin, JJ.