PEOPLE v. RODRIGUEZ


113 A.D.2d 337 (1985)

The People of the State of New York, Respondent, v. Fernando Rodriguez, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 2, 1985


Attorney(s) appearing for the Case

Philip L. Weinstein (Abigail Everett of counsel), for appellant.

Elizabeth Holtzman, District Attorney (Barbara D. Underwood, Shulamit Rosenblum and Stephen Gaines of counsel), for respondent.

THOMPSON and WEINSTEIN, JJ., concur with EIBER, J.; LAZER, J. P., dissents and votes to reverse the judgment, on the law, and dismiss the indictment, with an opinion.


EIBER, J.

The question presented by this appeal is whether defendant's conviction for criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]) must be set aside on the basis that the prosecution failed to affirmatively prove that the illegal possession of a weapon did not take place in defendant's "home or place of business" even though the issue was not raised, expressly or otherwise...

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