
    The People of the State of New York, Respondent, v. Phillip Garcia, Appellant.
   Judgment, Supreme Court, New York County, rendered May 22, 1973, convicting defendant, upon a jury verdict, of possession of a weapon as a felony, and sentencing defendant to an indeterminate term of imprisonment not to exceed seven years, unanimously modified, on the law, by reducing the conviction for possession of a weapon as a felony to one for possession of a weapon as a misdemeanor and remanding the matter for resentence in accordance therewith; and otherwise affirmed. Scrutiny of the record discloses that" the People failed to prove that the shotgun shells found in defendant's possession could be used to discharge the sawed-off shotgun (also found in his possession) as required by subdivision 2 of section 265.05 of the Penal Law. The shells, introduced as evidence, were merely identified as 12-gauge barrel shot. This is insufficient to determine their quality as “live rounds” which may be used to discharge the firearm. In view of the fact that defendant’s possession of the sawed-off shotgun was proved beyond a reasonable doubt, a reduction of the conviction under subdivision 2 of section 265.05 of the Penal Law to a conviction under subdivision 3 of section 265.05 of the Penal Law is warranted, the latter subdivision relating to simple possession of a firearm. Further, as the procedure mandated by CPL 200.60 was not followed, no basis exists for sustaining defendant’s conviction under subdivision 3 of section 265.05 of the Penal Law as a felony. Concur — McGivern, P. J., Markewich, Kupferman, Lupiano and Lane, JJ.  