Opinion
June 19, 1967
Judgment of the County Court, Nassau County, rendered November 29, 1966 on resentence, convicting him, upon his plea of guilty, of (1) attempted felonious possession of a loaded firearm and (2) possession of a dangerous weapon as a misdemeanor, modified, on the law, by (a) deleting therefrom the conviction and sentence for possession of a dangerous weapon as a misdemeanor and (b) dismissing the second count of the indictment. As so modified, judgment affirmed. Appeal from original judgment of said court rendered November 9, 1966 dismissed. That judgment was superseded by the judgment on resentence, rendered November 29, 1966. Defendant was charged in a three-count indictment with (a) felonious possession of loaded firearms (first count), (b) possession of a dangerous weapon as a misdemeanor (second count) and (c) conspiracy as a felony (third count). In satisfaction of the entire indictment defendant pleaded guilty to the second count and to attempt to commit the crime charged in the first count. We find the indictment on its face fails to state a crime in the second count. Possession of a loaded rifle without a license, without more, does not constitute a crime under sections 1897 or 1903 of the Penal Law. The defect was not waived by the defendant's plea of guilty ( People v. Scott, 3 N.Y.2d 148, 152; People v. Maggio, 16 A.D.2d 820, revd. on other grounds 12 N.Y.2d 789; People v. Baranello, 24 A.D.2d 637). Rabin, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.