Under Penal Law § 265.02 (4) possession of a loaded firearm does not constitute criminal possession of a weapon in the third degree if this possession takes place at the home or place of business of the possessor. Debated here is the validity of defendant’s conviction for that *344crime despite the absence of any proof that the possession occurred outside of his place of business. Since it is the People’s obligation to plead and prove as an element of the crime that the possession did not take place in the defendant’s place of business, I cannot agree with my colleagues that this fact is to be presumed if no evidence to the contrary is provided.
Defendant was charged with one count of criminal possession of a weapon in the third degree in that he "knowingly and unlawfully possessed a loaded firearm, to wit: a revolver, such possession not being in defendant’s home or place of business”. The wording of the indictment closely tracks the language of Penal Law § 265.02 (4) that:
"A person is guilty of criminal possession of a weapon in the third degree when * * *
"(4) He possesses any loaded firearm. Such possession shall not * * * constitute a violation of this section if such possession takes place in such person’s home or place of business.”
At defendant’s bench trial, the People proved beyond a reasonable doubt that he had possessed a loaded firearm in a laundromat. But no evidence was submitted by either the People or the defendant to indicate whether the laundromat was defendant’s place of business. On his appeal from the ensuing judgment of conviction, defendant contends that the People failed to prove his guilt beyond a reasonable doubt because they failed to prove that the laundromat was not his place of business. I believe he is correct.
My colleagues concede,, of course, that the requirement that the possession not be in the defendant’s home or place of business is an element of the crime to be pleaded and proved by the People (see, People v Ali, 36 NY2d 880; People v Newell, 95 AD2d 815; 3 CJI [NY] PL 265.02 [4]; see generally, CPL 70.20; People v Segal, 54 NY2d 58). Despite this, the majority concludes that the People were not required to present any evidence whatsoever to meet their burden of proof on this issue because defendant presented no evidence that the laundromat was his place of business.
The majority justifies this abrupt rejection of the normal presumption of innocence by labeling it a mere shifting of the initial burden of coming forward which is warranted because the defendant is purportedly uniquely able to provide proof on this , issue. To do otherwise, my colleagues say, would put the People to the supposedly difficult task of proving that someone *345other than defendant owned the laundromat. I find this rationale unpersuasive and the result unjustified.
Initially, I note that the analysis employed by the majority is one not normally applied to an acknowledged material element of a crime, for its effect is to transform an element the People were obligated to prove in all cases into a defense for which the defendant has the burden of going forward before the People must shoulder their burden. This analysis is normally used as a justification for requiring a defendant to bear some burden of proof in asserting a legislatively defined affirmative defense or in negating a rebuttable presumption (see, e.g., People v Patterson, 39 NY2d 288, 305-306 [Breitel, Ch. J., concurring], affd sub nom. Patterson v New York, 432 US 197; Patterson v New York, 432 US 197, 211-212, n 12, supra). It may also be utilized to establish appropriate burdens of proof as to various determinations that do not go directly to proof of the elements of an indictment (People v Rosa, 65 NY2d 380). It is true that in the absence of any legislative guidance, such as the classification of defenses, courts faced with the need to determine who should bear the burden of introduction with respect to a statutory exception have also employed an analysis based on the likelihood that the necessary information is uniquely in the possession of the defendant (see, People v Bradford, 227 NY 45; People v Devinny, 227 NY 397). The need for this type of approach to statutory exceptions was alleviated, however, with the adoption of the revised Penal Law (L 1965, ch 1030), which differentiated between defenses and affirmative defenses and classified each defense within the Penal Law as one or the other (see, Penal Law § 25.00; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 25.00, at p 63; New York State Commn on Revision of the Penal Law and Criminal Code, Staff Comments on Changes in the New Penal Law since the 1964 Study Bill, art 25 [1965]). Thus, although the analysis remains relevant in connection with offenses defined outside the Penal Law (e.g., People v DAmato, 12 AD2d 439 [General Business Law § 343]; People v Baur, 102 Misc 2d 971 [Vehicle and Traffic Law § 1180 (b); § 1104 (a); § 1110 (a)]), the same cannot be said of an offense such as this, which is found within the Penal Law. Rather, as to any true statutory exception setting forth a material element of a crime found in the Penal Law, the People must bear the burden of introduction unless it has been classified as a defense by the Legislature.
We deal here with a statutory scheme in which the Legisla*346ture has made possession of a firearm any place (Penal Law § 265.01 [1]) and possession of a loaded firearm outside of one’s home or place of business (Penal Law § 265.02 [4]) crimes of different degrees with different sanctions, the latter being the more serious crime (see, People v Ali, 36 NY2d 880, 882, supra; People v Francis, 45 AD2d 431, 434, affd 38 NY2d 150). Had the Legislature wished to relieve the People of the burden of proving that possession was outside the home or place of business unless the defendant first presented some evidence to the contrary, it could readily have made the exception a defense. It chose not to do so, and I do not believe that this clear expression of legislative purpose can be avoided by judicial imposition of a burden shifting device which allows the People to obtain a conviction for the more serious crime without establishing both of the elements of the crime that serve to distinguish it from the lesser crime.
I note that the result reached by the majority is not supported by any binding precedent. No appellate court appears to have ruled on this issue, and the two nisi prius State court cases cited by the majority, People v McWilliams (96 Misc 2d 648, 653), and People v Witherspoon (120 Misc 2d 648, 653), turned on other points and merely indicated in dicta that the defendants had the burden of production on the issue of home or place of business. Moreover, they relied primarily on a Federal District Court’s habeas corpus decision, United States ex rel. Presenzano v Deegan (294 F Supp 1347), in which the court dismissed the petition because the petitioner had not exhausted his State remedies and in which no authority is given for the statement, unnecessary to the decision, that a defendant is required to come forward with some evidence that the possession was in his home or place of business. While these precedents are obviously not binding, their basic weakness is that they are also not persuasive.
Moreover, I fail to see the relevance of People v Rosa (65 NY2d 380, supra). In that case, the Court of Appeals held that a defendant who is seeking to suppress incriminatory statements on the ground that at the time they were elicited he was represented by counsel in another proceeding has the burden of proving that he was in fact represented by counsel at the time. While one of the arguments supporting the Court of Appeals conclusion was that the defendant was in the best position to provide information on that item, the case has no bearing on this dispute. We do not deal here with the boundaries of constitutional rights still being delineated by the *347courts, but with a material element of a crime to be pleaded and proven by the People in every case and not classified as a defense.
Nor, for a variety of reasons, can the result reached by the majority be supported by some sort of rebuttal presumption that, whatever the place was in which the defendant possessed the gun, it will be presumed that the place was not his home or place of business (see, People v Witherspoon, 120 Misc 2d 648, 653, supra). First, I find no justification for interpreting the statute so as to incorporate such a presumption or inference. There is no indication to be found in the statutory scheme that the Legislature intended to create such a presumption. Had the Legislature wished to relieve the People of the burden of proving in every case that the possession took place outside the defendant’s home or place of business, it could readily have done so. Thus, the Legislature could either have made possession in a defendant’s home or place of business a defense or it could have attempted to fashion a constitutionally viable presumption. That the Legislature was well aware of the need for and utility of certain presumptions in dealing with weapons possession offenses is amply demonstrated by examination of Penal Law § 265.15, which contains a variety of presumptions. Notably absent from this list is the presumption or inference involved in this case. I cannot but interpret this as an indication that the Legislature saw no need for such a presumption or inference.
The rebuttable presumption theory contains a flaw which is even more fundamental than that already discussed. Although rebuttable presumptions or inferences are a permissible and often necessary part of the criminal law under appropriate circumstances, they are to be created and applied with some caution because they necessarily implicate due process considerations (see, Barnes v United States, 412 US 837). Thus, at a minimum, such a rebuttable presumption or inference is valid only if "there is a 'rational connection’ between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from’ the former” (Ulster County Ct. v Allen, 442 US 140, 165, quoting Tot v United States, 319 US 463, 467, and Leary v United States, 395 US 6, 36). Moreover, the Court of Appeals has emphasized that there must be "a reasonably high degree of probability” that the conclusion follows from the evidence proffered (People v McCaleb, 25 NY2d 394, 404; accord, People v Leyva, 38 NY2d 160, 166; People v Robinson, 97 Misc 2d 47).
*348Here, the People have proven simply that defendant was found inside a laundromat with a loaded revolver in his possession. I fail to see the logical connection between the proven fact that defendant possessed the weapon in the laundromat and the presumed conclusion that therefore the laundromat was not his place of business. There is simply no line of reasoning which leads from the one statement to the other, and thus the purported presumption may not stand in any event.
Because defendant’s guilt has not been proven beyond a reasonable doubt due to the absence of any proof that the laundromat was not his place of business, the judgment of conviction should be reversed. Moreover, inasmuch as defendant was not charged with criminal possession of a firearm in the fourth degree (Penal Law § 265.01 [5]) and that crime is not a lesser included offense of the crime charged (People v Ali, 36 NY2d 880, supra), the indictment should be dismissed.
Thompson and Weinstein, JJ., concur with Eiber, J.; Lazer, J. P., dissents and votes to reverse the judgment, on the law, and dismiss the indictment, with an opinion.
Judgment of the Supreme Court, Kings County, rendered February 24, 1982, affirmed.