Opinion
October 25, 1994
Appeal from the Supreme Court, New York County (Jeffrey Atlas, J.).
The court properly charged the "automobile presumption" (Penal Law § 265.15), which presumes possession of a firearm by all occupants of a vehicle "except * * * (a) if such weapon * * * is found upon the person of one of the occupants therein", where, immediately before the arrest, the weapon was in the possession of the codefendant, whereupon defendant and the codefendant both attempted to hide it. "[W]here the officer does not observe the weapon in the exclusive possession of any one person immediately prior to or at the time of arrest, the exception is inapplicable." (People v. Verez, 83 N.Y.2d 921, 924.)
The fact that defendant himself was seen handling the weapon, along with the codefendant, at the moment of arrest does nothing to render the "upon the person" exception to the automobile presumption applicable (People v. Scott, 199 A.D.2d 436, lv denied 83 N.Y.2d 858). On the contrary, that fact gave the jury the very sort of ambiguity, as to whether at that moment both defendants were in possession of the weapon, which the "automobile presumption" was designed to help clarify. To the extent defendant argues that the "upon the person" exception should have been submitted to the jury, the argument is unpreserved (People v. Lemmons, 40 N.Y.2d 505, 512), and we decline to review it in the interest of justice.
Concur — Murphy, P.J., Sullivan, Rosenberger, Nardelli and Tom, JJ.