People v. Charles
| Citation | 169 N.Y.S.2d 757,9 Misc.2d 181 |
| Parties | The PEOPLE of the State of New York v. Eugene CHARLES, Defendant. |
| Decision Date | 09 January 1958 |
| Court | New York Court of Special Sessions |
Edward S. Silver, Dist. Atty., Kings County, by Lewis D. Cohen, Brooklyn, for the People.
Florence Kelley, New York City (Caroline M. Davidson, New York City, of counsel), for defendant. BENJAMIN GASSMAN, Justice.
The defendant is charged in a four-count Information with a violation of Section 1897 of the Penal Law, in that on February 15, 1957, with intent to use the same unlawfully against a person whose name is unknown to the District Attorney, he carried and possessed a thirty-two caliber pellet gun, which is described as a dangerous and deadly weapon.
The testimony in this case discloses that the defendant had in his possession a pistol capable of discharging pellets. The police officer described the weapon as 'an air pistol'. No testimony was adduced to indicate that the defendant intended to use the pistol unlawfully against another person.
Section 1897 of the Penal Law provides that 'a person who attempts to use against another an imitation pistol, or who carries, or possesses, any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, metal knuckles, bludgeon, or who, with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stilletto, imitation pistol, machine-gun, sawed off shot-gun, or any other dangerous or deadly instrument, or weapon' is guilty of a misdemeanor. (Emphasis supplied.)
The first subdivision of Section 1897, which is quoted above, thus specifies three distinct crimes, to wit: (1) an attempt to use certain weapons therein described against another; (2) carrying or possessing any such instruments or weapons; and (3) carrying or possessing, with intent to use the same unlawfully against another, a dagger, dirk, dangerous knife, razor, stilletto, imitation pistol, machine gun, sawed-off shotgun, or 'any other dangerous instrument or [deadly] weapon'. People v. Grass, 79 Misc. 457, 141 N.Y.S. 204, 205; People v. Trudeau, Co. Ct., 24 N.Y.S.2d 34, 35. A pellet gun or air pistol is not specifically included among the prohibited weapons in that section.
It has been held that an air pistol is not a 'firearm' within the meaning of Section 1897 of the Penal Law. People v. Schmidt, 221 App.Div. 77, 222 N.Y.S. 647. A 'firearm' is...
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...statutes, an imitation pistol is not an actual firearm which can discharge a projectile or acts by force of gunpowder (People v. Charles, 9 Misc.2d 181, 169 N.Y.S.2d 757) nor is it an inoperable pistol which can be readily made operable (In re Don R.B., 66 Misc.2d 279, 320 N.Y.S.2d Before b......
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...those weapons specifically named in Subdivision 1 of Section 1897 (People v. Adamkiewicz, 298 N.Y. 176, 81 N.E.2d 76; People v. Charles, 9 Misc.2d 181, 169 N.Y.S.2d 757). With that presumption absent, the record stands totally bare of any proof that the defendant intended to use the rifle u......
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