MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted of the crime of criminally possessing a hypodermic instrument in violation of section 220.45 of the Penal Law. That section, in pertinent part, provides plainly and directly that "[a] person is guilty of criminally possessing a hypodermic instrument when he knowingly and unlawfully possesses or sells a hypodermic syringe or hypodermic needle." Pursuant to this statute, then, and aside from the question of unlawful and knowing possession, the jury must determine, not whether the hypodermic instrument was functional but, more simply, whether the item unlawfully possessed was, in fact, a hypodermic needle or syringe.
On the question of possession, here proved by circumstantial evidence, we need only note that the evidence was sufficient under the appropriate test (see People v Wachowicz, 22 N.Y.2d 369, 372) to sustain the conviction.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed in a memorandum.