Opinion
April 18, 1977
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 24, 1975, convicting him of possession of weapons, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Defendant-appellant's indictment and trial for the crime of possession of weapons, etc., as a felony, arose out of the discovery by the police of a loaded revolver in his car. During the course of its charge, the trial court instructed the jury as to the applicability of the presumption contained in subdivision 3 of section 265.15 Penal of the Penal Law. That subdivision provides, in pertinent part, that "The presence in an automobile * * * of any firearm * * * is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon * * * is found". "The statutory presumption establishes a prima facie case against the defendant which presumption he may, if he chooses, rebut by offering evidence. Generally, the presumption will remain in the case for the jury to weigh even if contrary proof is offered but may be nullified if the contrary evidence is strong enough to make the presumption incredible. So too, if no contrary proof is offered, the presumption is not conclusive, but may be rejected by the jury" (People v Lemmons, 40 N.Y.2d 505, 510; see, also, People v Leyva, 38 N.Y.2d 160, 171). The trial court herein failed to stress the permissive nature of the presumption and, instead, instructed the jury that defendant "must come forward and give an explanation that satisfies the jury". The court's charge improperly shifted the burden of proof to the defendant, and constituted reversible error. Accordingly, a new trial is required on that ground. We have considered the other points raised on this appeal by defendant, including the denial of his motion to suppress evidence, and find them to be without merit. Margett, Acting P.J., Shapiro, Titone and Suozzi, JJ., concur.