(dissenting in part). Defendant was convicted of two counts of criminal possession of a weapon in the second degree (Penal Law §§ 265.03 [1] [b] [count one]; 265.03 [3] [count two]). Because the People failed to present proof establishing that defendant, while possessing a loaded firearm, intended to use it “unlawfully against another” (count one), I respectfully dissent.
The People’s proof plainly established that defendant possessed a loaded firearm outside his home or place of business (Penal Law § 265.03 [3]),* a class C felony. One act, one crime. However, the People claim, and the majority agrees, that the People were entitled to go further and rely on Penal Law § 265.15 (4)’s presumption that “[t]he possession by any person of any . . . weapon ... is presumptive evidence of intent to use the same unlawfully against another” in order to pile on a second felony conviction for the same act.
In many cases, the People should be able to rely on such a presumption, but only where “there is ample evidence in the record other than the presumption to support a conviction” (County Court of Ulster Cty. v Allen, 442 US 140, 160 [1979] [emphasis supplied]). There must be “a rational connection between [the] facts proved directly and [the] ones to be inferred” (People v Leyva, 38 NY2d 160, 165 [1975]), and the connection must necessarily “assure ‘a reasonably high degree of prob*727ability’ that the presumed fact follows from those proved directly” (id. at 166, quoting People v McCaleb, 25 NY2d 394, 404 [1969]).
Here, there is no such connection. The People were able to directly prove that defendant possessed a loaded weapon, but the only proof the People presented concerning defendant’s intent relative to count one was that defendant had accidentally shot his cousin, evidence that would appear to negate any intent to use the weapon unlawfully against another. To be sure, as the majority states, the People need not prove that defendant intended to use the weapon unlawfully against a particular person (majority op at 725); but the People must do more than simply rely on a permissive presumption to meet their burden (see Allen, 442 US at 167; United States v Curcio, 712 F2d 1532, 1541 [2d Cir 1983] [“(a)s long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need meet only a more likely than not rather than a beyond a reasonable doubt standard”] [internal quotation marks omitted]).
Given the lack of any evidence, direct or circumstantial, concerning defendant’s intent to use the weapon unlawfully against another, the jury could not have rationally concluded that defendant’s mere possession of a loaded firearm established his intent to unlawfully use it against another. More than likely, having determined that defendant unlawfully possessed the weapon, the jury concluded that the accidental shooting of his cousin must have been an unlawful use against another, the result being a defendant convicted twice for one possession— something the law neither contemplates nor permits. I would therefore reverse and dismiss count one of the indictment.
Judges Graffeo, Read, Smith and Rivera concur with Judge Abdus-Salaam; Judge Pigott dissents in part in an opinion in which Chief Judge Lippman concurs.Order affirmed.
Notably, in 2006, the legislature inadvertently repealed the crime of possession of a loaded firearm with the intent to use the same unlawfully against another (L 2006, ch 742, § 1), notwithstanding the Attorney General’s concern that the legislation contained an “unintended flaw,” namely, that “it would significantly reduce the penalties that [could] be imposed on perpetrators of domestic violence who intend to use loaded, illegal firearms to further harm those they victimize” (Mem of Off of Atty Gen, Bill Jacket, L 2006, ch 742 at 6-7). The legislature corrected that flaw the following month (L 2006, ch 745).