
    The People of the State of New York, Respondent, v. Antonio Torres, Appellant.
    Supreme Court, Appellate Term, First Department,
    July 5, 1967.
    
      Otto F. Fusco for appellant. Isidore Dollinger, District Attorney (Roy Broudny of counsel), for respondent.
   Per Curiam.

Possession of two unused, unplayed and intact booklets of boli-pol is not violative of section 975 of the Penal Law. There was no proof of wager nor that defendant was otherwise engaged in “policy”.

The judgment of conviction should be reversed on the law and the facts and the complaint dismissed.

Gold and Markowitz, JJ., concur; Hofstadter, J. P., dissents in dissenting memorandum and votes to affirm.

Hofstadter, J. P.

Section 975 of the Penal Law makes a misdemeanor knowing possession of writings which are records of numbers sold or selected “ or to be drawn or selected also, possession of writings “ commonly used in carrying on, promoting or playing ” policy (italics supplied). Proof of possession is presumptive evidence of knowing possession. In my judgment, the booklets before us come squarely within the proscribed writings.

The fact that they had not yet been sold by defendant does not alter the situation. As Conway, J., said in People v. Kravitz (287 N. Y. 475, 477 — 478): “ What the defendant had before the sale was a writing or paper representing or being a record of chance, share and interest in numbers to be drawn or selected. In effect the defendant urges * * * that it is not a policy slip when he (the seller) has it in his possession for sale to a customer who will not know the number he is to play until he has paid for it and ripped the threads with which the slip is sewn.” The Court of Appeals overruled this argument and reinstated a verdict of guilt.

I therefore disisent and vote to affirm.

Judgment reversed and complaint dismissed.  