B., In re

• Decision Date: 30 April 1971
• Citation: 66 Misc.2d 279,320 N.Y.S.2d 813
• Parties: In the Matter of Don R.B. * A Person Alleged to be a Juvenile Delinquent, Respondent. Family Court, City of New York, Kings County
• Court: New York City Court

Page 813

320 N.Y.S.2d 813

66 Misc.2d 279

In the Matter of Don R.B. ^* A Person Alleged to be a Juvenile Delinquent, Respondent Family Court, City of New York, Kings County.

April 30, 1971.

Joel Rankin, Corp. Counsel by Joel Newman, Brooklyn, for petitioner.

Charles Schinitsky, by Matthew Dollinger, Brooklyn, Law Guardian, for respondent.

JACOB T. ZUKERMAN, Justice.

The respondent in this delinquency proceeding was charged with 'possession of a loaded .22 calibre home made gun, containing one live round of ammunition' an act which, if done by an adult, would constitute the crime of 'possession of loaded gun' as the petition read. If established, this would be a violation of either Section 265.05(9) or Section 265.05(4) of the Penal Law.

Section 265.05(9) provides that 'any person who has in his possession any dagger, * * * stiletto, imitation pistol or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another is guilty of a Class A misdemeanor. * * *'

Section 265.05(4) provides that 'Any person under the age of sixteen years of age who has in his possession any of the weapons, instruments, appliances or substances specified in the first three subdivisions of this section or any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air, or any gun, or any instrument or weapon in or upon which any loaded or blank cartridges may be used, or any loaded or blank cartridges or ammunition therefore, or any dangerous knife, shall be adjudged a juvenile delinquent.'

There is no dispute in this case that the object in respondent's possession in this proceeding was incapable of discharging a bullet at the time it was found in his possession.

(1) Was this a dangerous weapon?

The first question for the Court is whether the object found in respondent's possession was in fact a firearm. If it is not a firearm then the Court must look to see if it is a dangerous weapon, whether it was carried furtively and if so whether it was carried with intent to use it unlawfully against another. People v. Simons, 124 Misc. 28, 207 N.Y.S. 56 (1924).

A pistol incapable of being fired is not a pistol, revolver or other firearm within the statute. People v. DeWitt, 285 A.D. 1157, 140 N.Y.S.2d 190 (1955); People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630 (1961), aff'd 11 N.Y.2d 841, 227 N.Y.S.2d 668, 182 N.E.2d 278 (1962).

There is no dispute that the object in respondent's possession in this proceeding was incapable of discharging a bullet. Therefore it was not a firearm. However, it may still qualify as a dangerous weapon if 'with reasonable preparation it can be made effective and fit for the use * * * what constitutes a reasonable preparation depends of course upon the time required, the changes that have to be made in the weapon, the parts which have to be inserted and all other attendant factors.' People ex rel. DiBuono v. Haskins, 190 Misc. 888, 76 N.Y.S.2d 636 (1948).

In People v. Tardibuono, 174 Misc. 305, 20 N.Y.S.2d 633 (1940), the Court held that it was a question for the jury whether the gun could be made operable by defendant, unless the Court should find that the instrument was beyond repair so that under no circumstances could it be restored to its original condition as a usable gun. In that case it was held that the gun could be made operable by simply turning the carriage by hand and since the adjustment was so simple the gun was a dangerous weapon.

In the Family Court, the Judge is the finder of fact and law. It is therefore for him to determine first if the gun was beyond repair as a matter of law and secondly whether as a matter of fact the respondent was capable of fixing the gun with a reasonable amount of effort. The Massachusetts case of Commonwealth v. Bartholomew, 326 Mass. 218, 93 N.E.2d 551 (1950), cited by petitioner, is in agreement that a gun that will not fire is not a firearm unless with relatively slight repair it can be made operable.

In the case at hand there is no evidence as to what expertise, if any, respondent has had with firearms. It is conceded that when he was found with the gun it would not fire. There is no evidence that respondent was capable of repairing the gun so as to make it fire. I, therefore, find the instrument on the respondent was not a firearm, as it was not operable, and as it has not been proven that with reasonable effort respondent could have made it operable.

(2) Was this an imitation pistol?

We next look at section 265.05(9) to determine whether respondent had in his possession an imitation pistol With intent to use the same unlawfully against another. (Italics for emphasis)

People v. Del Gardo, 1 Misc.2d 821, 146 N.Y.S.2d 350 (1955) states that the word imitation when applied to pistols and revolvers means so nearly resembling the genuine as to mislead with the apparent object of producing, and likely to produce upon the minds of those against whom it is to be used, the belief that the initation is capable of producing all the injurious consequences of the genuine article itself.

An instrument that was constructed to fire bullets but was a failure and is inoperable as a firearm is not ipso facto an imitation pistol. Such an instrument might not resemble the genuine article at all. Though with only slight repairs it might be made to fire it would not be likely to produce in the minds of others the belief that it was a firearm. On the other hand an instrument that had no mechanism whatsoever for firing might be an imitation pistol even though it was not in fact dangerous to anyone. This is an important distinction. What determines if any instrument is an imitation pistol for purposes of Sec. 265.05(9) is the appearance of the instrument and not the function for which it was constructed. There is some question in my mind whether the instrument carried by respondent was in fact an imitation pistol. Moreover, under Section 265.05(9) 'intent' is an element of the crime. Mere possession of an imitation pistol is not a violation without intent to use it unlawfully. Section 265.15(4) does state that: 'The...