IN RE: DAVID H. (2006)

Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on or about May 25, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he had committed an act which, if committed by an adult, would constitute unlawful possession of an air pistol in violation of Administrative Code of the City of New York § 10-131(b)(1), and imposed a conditional discharge for a period of 12 months, unanimously reversed, on the law, without costs, and the petition dismissed.

To establish the charge of unlawful possession of an air pistol in violation of § 10-131(b)(1) of the Administrative Code of the City of New York, the presentment agency was required to prove, inter alia, that appellant possessed the air pistol.   The evidence was legally insufficient to establish that appellant possessed the air pistol.   On the possession issue, the evidence established only that a teacher saw appellant inside a closet area “flipping the top of his pants out a little” so that another student could not look in;  she was unable to see what, if anything he had in his pants.   At some point thereafter-the record does not indicate how long thereafter-a school safety agent saw appellant in an adjoining classroom standing near a group of lockers.   One of the lockers was “kind of cracked open” and the agent found the air pistol in that locker when he opened it.   The agent did not see appellant put anything into the locker nor was there any evidence the locker was assigned to appellant.   The evidence established only proximity to, not possession of, the air pistol.