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) and (4) unless the People prove that the firearm possessed by the defendant is operable *941(People v Cavines, 70 NY2d 882; People v Shaffer, 66 NY2d 663, 664; People v Wearing, 126 AD2d 586, lv denied 69 NY2d 888; People v Actie, 99 AD2d 815).

We also note that it was error for the trial court to admit testimony concerning defendant’s pretrial silence (see, People v Conyers, 52 NY2d 454). (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J.—criminal possession of weapon, third degree.) Present—Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.