
    The People of the State of New York, Appellant, v Barney Smith, Respondent.
   Order, Supreme Court, New York County (Jerome Marks, J.), entered May 16, 1980, dismissing the second count charging criminal possession of a weapon in the third degree (Penal Law, § 265.02), reversed, on the law, and the second count reinstated. The trial court should not have dismissed the second count of the indictment for legal insufficiency. The testimony of the prosecution witnesses established a prima facie case that the defendant possessed a gun at the time of the occurrence in violation of section 265.02 of the Penal Law. Accordingly, we reinstate that second count. Concur — Murphy, P. J., Birns, Sandler, Ross and Lupiano, JJ.  