
    The People of the State of New York, Plaintiff, v. Almeido Santiago, Defendant.
    Supreme Court, Trial Term, New York County,
    December 3, 1971.
    
      
      Frank S. Hogan, District Attorney, for plaintiff. Ronald H. McKie for defendant.
   Johh M. Murtagh, J.

Defendant’s omnibus motion is disposed of as hereinafter indicated.

That branch of the motion requesting a suppression hearing is respectfully referred to the trial court.

The defendant, a taxicab driver, was arrested on or about February 7, 1971 and charged with the crime of criminal possession of a dangerous weapon as a felony. On April 28, 1971 the defendant was indicted and charged with the above-mentioned crime.

The defendant moves to inspect the Grand Jury minutes and/or in the alternative for a dismissal of the indictment.

The court has read the Grand Jury minutes. It does not appear that the evidence submitted establishes the commission of a felony under subdivision 2 of section 265.05 of the Penal Law.

Subdivision 2 of section 265.05 provides that “ Such possession [possession of a firearm] shall not * * * constitute a felony

if such possession takes place in such person’s home or place of business.” It is evident that the Legislature intended to classify possession in a home or place of business a lesser degree of crime than one that takes place elsewhere. The policy behind such special classification is evident.

We have in this case possession of a .38 automatic Beretta in a cigar box used to keep the day’s receipts, the cigar box being in a taxicab assigned to the defendant for his daily business use. There is no precedent to guide the court. Nonetheless, it appears evident that within the letter and spirit of subdivision 2 of section 265.05 the possession is a possession in a “ place of business.”

Accordingly, defendant’s motion to dismiss the indictment is granted.  