People v. Ansare

• Citation: 468 N.Y.S.2d 269,96 A.D.2d 96
• Parties: PEOPLE of the State of New York, Respondent, v. Annam ANSARE, Appellant.
• Decision Date: 04 November 1983
• Court: New York Supreme Court Appellate Division

Page 269

468 N.Y.S.2d 269

96 A.D.2d 96

PEOPLE of the State of New York, Respondent, v. Annam ANSARE, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 4, 1983.

Edward J. Nowak, Rochester (Peter Braun, Rochester, of counsel), for appellant.

Howard R. Relin, Dist. Atty., Rochester (Louise Boillat, Rochester, of counsel), for respondent.

Before DILLON, P.J., and CALLAHAN, GREEN, O'DONNELL and SCHNEPP, JJ.

DILLON, Presiding Justice:

The jury found defendant guilty of criminal possession of a weapon in the third degree (Penal Law, § 265.02, subd. [4] ), criminal possession of a weapon in the fourth degree (Penal Law, § 265.01, subd. [5] ) and disposing of a weapon (Penal Law, § 265.10, subd. 4), all arising from his possession and sale of a handgun and loaded bullet clip.

Aside from the evidence offered on the People's direct case that the handgun was operable, the other relevant facts may be drawn from the defendant's testimony at trial. He acknowledged that on August 9 1979 he possessed a .25 caliber handgun and loaded bullet clip, and he admitted that he sold the gun and clip to an undercover police officer for $80. He also stated that earlier on the same day he had received the gun and clip from a man known to him only as Mugsy, who had told him that the gun was an antique and had no firing pin. He further testified testified that the gun was rusty and that a third party had told him that it was "garbage".

Although defendant raises three issues on appeal, comment is required only on one. He argues that the trial court erred in refusing his request to charge that the jury could not find him guilty of criminal possession of a weapon in the third degree absent proof beyond a reasonable doubt that he knew that the gun was operable. He contends that since an inoperable pistol is not a firearm, he could not be aware that he was in possession of a firearm without knowing that the pistol he possessed was operable. Despite its apparent logical appeal, the argument must fail.

A firearm is defined as including a pistol or revolver other than an antique (Penal Law, § 265.00, subd. 3). While the statutory definition does not allude to operability, it is well settled that a pistol or revolver must be operable before there can be a conviction for possession of a firearm as a weapon (People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630, affd. 11 N.Y.2d 841, 227 N.Y.S.2d 668, 182 N.E.2d 278; People v. Donaldson, 49 A.D.2d 1004, 374 N.Y.S.2d 169).

The minimal requirement for criminal liability is the doing of a voluntary act (Penal Law, § 15.10) which, by definition, includes "the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it" (Penal Law, § 15.00, subd. 2). Thus, an element of the crime of possession of a weapon is the defendant's awareness of his possession (People v. Cohen, 57 A.D.2d 790, 394 N.Y.S.2d 683).

It does not follow, however, that defendant must know that the pistol or revolver he possesses is operable, and that the People must prove such knowledge as an element of the crime. The plain language of subdivision 4 of section 265.02 does not require the proving of any such element, and the other language contained in section 265.02 demonstrates the absence of an intention that knowledge of operability should be an element of subdivision 4 (contrast subdivision [3] where the word "knowingly" is employed and see various other sections of article 265 where knowledge or intention are made elements)....