The opinion
Shientag, J.
(dissenting). This is an appeal from a judgment of conviction of unlawful possession of a firearm in violation of subdivision 4 of section 1897 of the Penal Law. Three defendants were found guilty of that offense by the Court of Special Sessions. Only one, Russo, on whom sentence was suspended, has appealed.
The offense for which appellant was convicted was, solely one of possession. The Supreme Court of the United States has warned that “ both in common speech and in legal terminology, there is no word more ambiguous in its meaning than Possession.” (National Safe Deposit Co. v. Stead, 232 U. S. 58, 67 , quoted in People v. Wolosky, 296 N. Y. 236, 239 .) In clarifying this inherently ambiguous word, the Court of Appeals has, in decisions under this and analogous statutes, analyzed possession into its essential elements of ownership, custody or control. While section 1897 of the Penal Law is clearly not limited to actual physical possession (People ex rel. Darling v. Warden, 154 App. Div. 413 ), the presence of some one of these elements must be shown. (See People v. Leavitt, 301 N. Y. 113 ; People v. Wolosky, supra, and People v. Persce, 204 N. Y. 397 .)
The instant record is devoid of any proof that the weapon was ever in appellant’s ownership, custody or control. The conviction can be supported therefore, if at all, only by reliance upon the presumption of possession created by section 1898-a of the Penal Law. That section provides in part: “ The presence in an automobile, other than a public omnibus, of any of the following weapons, instruments or appliances, * * * shall be presumptive evidence of its illegal possession by all the persons found in such automobile at the time such weapon, instrument or appliance is found.”
I fully agree with the learned majority that section 1898-a of the Penal Law is constitutional. The purpose of the statute *106 is a beneficien! one; its intent is clear. It sought to overcome the impasse in which the prosecution found itself when all occupants of an automobile disclaimed possession of a weapon found therein. But it should be emphasized that the statute was not intended to and did not create a new crime of “ occupancy of an automobile in which there is a weapon,” or even of “ occupancy of an automobile in which there is known to be a weapon. ’ ’ The statute is entirely evidential in nature and serves only to shift the burden of coming forward with credible evidence. (See, Morgan on Some Observations Concerning Presumptions, 44 Harv. L. Rev. 906 [1931].) Section 1898-a of the Penal Law does not make it obligatory upon the defendant himself to take the stand and explain the presence of the weapon in the car of which he is one of the occupants. Where, as here, there is evidence in the record that negatives possession by the defendant or establishes possession by another so as to raise a reasonable doubt of the defendant’s illegal possession of the weapon, a conviction cannot stand.
What is the evidence adduced by the prosecution in this ease ? The appellant was one of four occupants of the car in which the weapon was found by the police. Officer Hladek testified that after the arrest the defendant Russo made the following admissions to him: “ He said that — well, I asked him whether he knew that the gun was in the car, and he claimed he did know the gun was in the car. * * *. He said that Singer got the gun originally; he bought it from a merchant seaman approximately a year before this date, April 7. * * * Singer was supposed to have picked up the gun from his home. * * * there was a delay in picking up the gun and, instead of arriving at this spot, 109th Street, at twelve midnight, they arrived a little later.”
These admissions in no way indicate that Russo knew the weapon was in the body of the car rather than in the custody of its owner, Singer. Knowledge by one occupant of a car that another occupant has a weapon on his person does not render the former guilty of illegal possession.
There was, however, a time when the weapon was in the body of the car itself. Officer Hladek testified that at about one thirty o’clock on the morning of April 7, 1949, he was on radio patrol duty with officer Butler. As he neared 109th Street between 5th and Madison Avenues, he noticed a car parked on the south side of the street. It had Florida license plates and the lights were on. There were occupants in the ear. He parked the police car alongside of the private car, which was a two-door *107 Buiclc convertible with front and back seats. He approached the rear of the convertible. Officer Butler approached from the front. As officer Hladek went around the side, he noticed one Grubhofer standing outside of the car. He had been an occupant of the car. Grubhofer had his head in the car and the officers told him to get away from the door. Russo was in the front seat of the car. He was encased in a cast from his chest to his hips. The police officer ordered the three occupants out of the car. His partner searched them a foot or two from the car and found no weapon on any of them; nor was a weapon found on Grubhofer. Officer Butler then searched the car and found the gun on the shelf behind the back seat of the car. It was in no way concealed.
Officer Hladek went further in his testimony. On direct examination by the assistant district attorney, Hladek testified as follows:
“ Q. How, did you have a conversation with Mr. Milton Singer? [one of the occupants of the car and a codefendant] A. Yes.
“ Q. Was that in the station house? A. Yes.
1 ‘ Q. Tell us about what you said to him and what he replied. A. Well, I asked him whether he knew the gun was in the car. He claimed he did. I asked him how it got there. He claimed that he bought the gun approximately one year ago from a merchant seaman, and that it was hidden in the back yard of the premises where he lived. He was supposed to have picked up that gun at nine o’clock at that night and meet these defendants and bring this gun in the car to this spot at 109th Street and Fifth and Madison Avenue. He claims he gave the gun to Grubhofer, and while they were riding in the ear, Grubhofer had the gun in his possession.
“ Q. That is what Singer told you? A. That is what Singer said. ’ ’
There is testimony on cross-examination as to what Grubhofer himself told Officer Hladek on the night of the arrest. I shall assume, although the record is not altogether clear on this point, that an objection was properly interposed by the District Attorney to this evidence on cross-examination and that it was incompetent. Even without Grubhofer’s story as to what took place, the record fairly shows that the gun was owned by the codefendant Singer, that it was on Grubhofer’s person while he was one of the occupants of the car and that he threw it into the back of the car as he saw the police car approaching.
*108 Even if the gun was found in the body of a car, in which there were several occupants, where the presence of the gun was explained ,as it has been here, the presumption of section 1898-a was rebutted so far as the defendant Russo was concerned and it was unnecessary for him to take the stand himself. In any event, I am of the opinion that, on the entire record, the charge of unlawful possession was not proven against him beyond a reasonable doubt.
The conviction should be reversed and the information dismissed.
Peck, P. J., Callahan and Van Voorhis, JJ., concur with Cohn, J.; Shientag, J., dissents and votes to reverse and dismiss the information, in opinion.
Judgment affirmed.