People v. Davis

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pizzuto, J.), rendered March 5, 1982, convicting him of criminal possession of stolen property in the second degree, and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Judgment affirmed.

The defendant was arrested along with his three passengers when a lawful search of the car he was driving revealed the presence of two loaded guns (a third had previously been thrown out the car window). At trial, the defendant wished to *890call as a witness the prosecutor, who had taken a plea of guilty to a weapon possession charge from one of the passengers in the car, to rebut the statutory presumption of permissive possession (see, Penal Law § 265.15 [3]). The court’s ruling that the defendant would be permitted to call the passenger himself as a witness but not the prosecutor was correct since the defendant was seeking to introduce a hearsay declaration against penal interest without establishing the prerequisite of the declarant’s unavailability (see, People v Shortridge, 65 NY2d 309, 312; People v Settles, 46 NY2d 154, 167).

We have examined the defendant’s remaining contention and find it to be without merit. Lazer, J. P., Mangano, Brown and Weinstein, JJ., concur.