The opinion
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 11, 1969, convicting him of conspiracy in the second degree and two counts of possession of weapons and dangerous instruments and appliances, as a felony, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and the facts and in the interests of justice, and indictment dismissed. In our opinion, the evidence against defendant was insufficient to establish his guilt of conspiracy to commit robbery beyond a reasonable doubt (see People v. Chaplin, 8 A D 2d 286). While the circumstantial proof no doubt raised a reasonable suspicion as to his guilt, it was not inconsistent with his innocence. Furthermore, we find that the trial court erred in charging the jury that defendant was presumed to have had possession of a bread knife and a starter’s pistol which were found in the automobile in which he was an occupant (Penal Law, § 265.15, subd. 3). Defendant’s actual possession of the bread knife and starter’s pistol was not proved and they are not within the category of weapons to which the statutory presumption applies. Munder, Acting P. J., Martuscello, Latham, Shapiro and Christ, JJ., concur.