People v. Wesley

Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant’s convictions of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1], [4]) must be reversed because the trial court refused to instruct the jury, at defendant’s request, that the burden was on the People to prove that the firearm possessed by the defendant was operable. Although the definition of firearm does not include the requirement that it be operable, courts have held that a person cannot be convicted of criminal possession of a weapon under Penal Law § 265.02 (1)…