Justice Sheryl Parker
B.W. was indicted for counts including criminal possession of a weapon under Penal Law §265.03, and criminal possession of a firearm under §265.01-a. The grand jury was presented with evidence that possession of a loaded firearm was within 1,000 feet of a school on a public street. The court noted if an exception to an offense was contained within a statute, the indictment must allege the crime was not within the exception. Here, the court stated while section three of §265.03 was properly charged to the grand jury, the count was defective as it failed to allege that Wright’s possession was other than in his home or place of business, under the exception. Thus, it ruled the count was jurisdictionally defective, concluding this omission of a material element was not curable by amendment. Prosecutors argued §265.01-a applied when the firearm was possessed within 1,000 feet of the boundary of a school, not on the school’s premises. The court disagreed noting the legislative intent of §265.01-a was to control possession of weapons inside the school premises. Thus, as evidence established the gun possession was on a public street, not inside a school, the evidence was also legally insufficient, and the two counts were dismissed.
