Opinion
December 10, 1981
Order, Supreme Court, New York County (Milonas, J.), entered on February 27, 1978, dismissing an indictment which charged the defendants with criminal possession of a weapon in the third degree, unanimously reversed, on the law, the motion to dismiss denied and the indictment reinstated. The court below dismissed the instant indictment on the ground that the statutory presumption of subdivision 3 of section 265.15 Penal of the Penal Law is unconstitutional. The court based its determination on the then persuasive Federal holding of Allen v County Ct., Ulster County ( 568 F.2d 998). However, Allen has since been reversed (sub nom. Ulster County Ct. v Allen, 442 U.S. 140). Therefore, the order appealed from should likewise be reversed. When the order, which is now being reviewed, was rendered, the court did fairly recognize that a difference existed between the decisional law of the highest court of this State and that of an intermediate Federal appellate court on the question of the constitutionality of the statutory gun presumption. The Court of Appeals of this State has consistently upheld the constitutionality of this presumption (see, e.g., People v Lemmons, 40 N.Y.2d 505, 509). In the absence of a ruling from the United States Supreme Court on the same issue, the court below should have adhered to the rulings of the Court of Appeals of the State of New York.
Concur — Birns, J.P., Sandler, Ross, Markewich and Fein, JJ.