Opinion
November 15, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 7, 1973, convicting him of possession of weapons, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion.
Both arresting officers testified, in substance, that at 3:50 A.M. on December 20, 1972, while driving past a White Castle restaurant, their attention was drawn to the defendant by the facial mannerisms of a waitress inside the restaurant. They then saw defendant walk down the street and around the side of a parked van, where he crouched down and placed something in the street under the front wheel of the vehicle. Although it "seemed" or appeared to the officers that defendant took something from the inside of his overcoat at that time, they could not see what that thing was. The officers then left their patrol car and proceeded to the van, where they found a sawed-off shotgun at or about the place where they had seen defendant crouch. Defendant, who was standing on the corner about 12 to 15 feet away, was then arrested. However, both officers admitted that they had never seen the weapon in his possession immediately before they found it under the van, and they could not identify what he may have taken from his coat. Furthermore, it should be noted that the People neither called the waitress as a witness nor offered any reason for not having called her. Therefore, in my view, the evidence adduced at the trial was insufficient to prove beyond a reasonable doubt that defendant is guilty of the charge of possession of a weapon (cf. People v Maiorano, 262 N.Y. 457; People v Di Maggio, 221 App. Div. 17, app dsmd 247 N.Y. 519, mot for rearg den 247 N.Y. 584; People v Andreacchi, 221 App. Div. 136; People v Freeman, 41 A.D.2d 811).