Opinion
August 15, 1986
Appeal from the Supreme Court, Kings County (Pizzuto, J.).
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 call 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). 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 N.Y.2d 309, 312; People v Settles, 46 N.Y.2d 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.