People v. Welcome

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Savarese, J.), rendered December 14, 1979, convicting him of criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified by reversing the conviction of criminal possession of a weapon in the second degree, under the fifth count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Once all testimony of the defendant’s participation with the codefendant in an armed robbery was properly stricken from the record, there remained insufficient testimony to establish that the defendant acted in concert with his codefendant in possessing the codefendant’s gun. The mere facts that the two men were seen walking down the street together and that the codefendant motioned towards his belt were insufficient to establish that the defendant was aware that his codefendant had a gun, particularly as the police witnesses did not see a gun or any other object in the codefendant’s belt.

Further, when the men were pursued into a backyard by the plain-clothes officers, they split up, the defendant hiding *718near the house and the codefendant attempting to escape over a fence. Although they both drew guns at that point, it was so dark that the police officer near the defendant could not see the codefendant on the fence, and there is no reason to believe that the defendant was better able to see the codefendant or his gun. There being no evidence that the defendant was at any time aware that his companion was armed, the conviction based on acting-in-concert in possessing the other gun must be reversed. We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Bracken, Brown and Eiber, JJ., concur.