Opinion
December 17, 1962
Appeal by defendant from a judgment of the former Court of Special Sessions of the City of New York, Borough of Brooklyn, rendered May 2, 1962, after trial, convicting him of assault in the third degree and of carrying a dangerous weapon; sentencing him to serve a term of 60 days; and suspending such sentence pending his good behavior. Judgment modified on the law and the facts by striking out the provision convicting defendant of carrying a dangerous weapon, and by substituting therefor a provision dismissing the information insofar as it charges the defendant with the commission of such crime (Penal Law, § 1897, subd. 1). As so modified, judgment affirmed. In our opinion, proof beyond a reasonable doubt was lacking to show that defendant carried a dangerous weapon with the proscribed unlawful intent. In addition, it appears that defendant was a housepainter en route to his home following a day's labor. As a matter of law, the fact that he was then in possession of a paint brush could not properly be found to have constituted a violation of the statute (Penal Law, § 1897, subd. 1). The instrument thus found in his possession was not of the kind which that statute interdicts (see People v. Adamkiewicz, 298 N.Y. 176). Ughetta, Acting P.J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.