Opinion
May 2, 1955.
Judgment of the County Court, Queens County, convicting appellant, as a second felony offender, of criminally possessing a dangerous weapon in violation of section 1897 of the Penal Law, as a felony, reversed on the law and the facts and a new trial ordered. The indictment, as amended, upon which the case was submitted to the jury, charged in substance that appellant and another, acting in concert, had a pistol in their possession in an automobile, other than a public omnibus, without a written license therefor. There was evidence concerning two pistols; People's Exhibit I, which was incapable of being fired, and People's Exhibit II, which was in working order. Although Exhibit I is not a pistol, revolver or other firearm within the meaning of subdivision 4 of section 1897 of the Penal Law, under certain circumstances it could be a dangerous weapon within the meaning of subdivision 1 of said section, as therein set forth. However, in the absence of proof of such circumstances, and knowing the condition of said exhibit, it was prejudicial of the District Attorney to introduce the volume of testimony relating thereto that he did. Appellant was further prejudiced by that portion of the charge which erroneously reviewed the testimony concerning Exhibit I as though it referred to Exhibit II. Respondent concedes that, since there was no testimony that the car in question was stolen, the court committed error in charging that portion of section 1898 of the Penal Law which relates to the presumption arising from the presence of a weapon in a stolen vehicle. In the circumstances herein, such error was prejudicial. No separate appeal lies from the sentence and from intermediate orders, which have been reviewed on the appeal from the judgment of conviction. Nolan, P.J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur.