Opinion
November 15, 1989
Appeal from the Monroe County Court, Celli, J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of two counts of criminal possession of a weapon, third degree. The court properly denied defendant's motion to dismiss the indictment. Defendant contended that the instructions to the Grand Jury were insufficient because, when charging the presumption of possession, the prosecutor did not instruct the jury on the permissive nature of the presumption. The evidence demonstrates that defendant was the only occupant of the van in which a loaded revolver was found. That evidence was sufficient to support a prima facie case of weapons possession. If defendant chose to offer mitigating evidence before the Grand Jury, an instruction on the rebuttable nature of the statutory presumption would have been appropriate (see, People v Simmons, 136 A.D.2d 132; People v Jobson, 119 Misc.2d 985, 987). Since the defendant did not testify before the Grand Jury, the Grand Jury had no evidence before it that rebutted the presumption.
We have reviewed the other claims raised by defendant on appeal and find them to be without merit.