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Decided on August 11, 2005
Supreme Court, Kings County

3111/05 JOSEPH KEVIN McKAY, J. On consent the Court has inspected the Grand Jury minutes in this action. Based on this review the Court finds that the evidence adduced is legally sufficient to support the FIRST, SECOND and FOURTH COUNTS of the indictment. People v Jennings, 69 NY2d 103, 115 (1986). Additionally, the prosecutor correctly charged the Grand Jury on the applicable law with respect to these counts. People v Calbud, Inc., 49 NY2d 389 (1980).
The THIRD COUNT stands on different footing and for reasons discussed hereafter is DISMISSED. There was testimony before the Grand Jury from two prosecution witnesses that the possession of the subject firearm occurred in defendant's home at 719 Kingsborough Walk, Apt. 3C, Kings County
( Transcript, May 3, 2005 at 6 and 15 ). These witnesses quoted defendant during the incident telling others to get out of his house. The firearm in question was recovered by Police Officer Paulo from an open closet in the bedroom at that address out of which defendant walked (Transcript, May 4, 2005 at 6). There was conflicting evidence on this issue in the form of pedigree information taken from defendant by Officer Paulo also presented to the Grand Jury that defendant's address is 1271 Jefferson Avenue, Brooklyn ( Transcript, May 4, 2005 at 9 ). As such the Grand Jury was entitled to weigh that conflicting evidence and decide to indict defendant for crimes committed not in his home, or decline to do so. On May 6, 2005, upon being charged on various counts, including Criminal Possession of a Weapon in the 3rd Degree ( Penal Law

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