People v. Cortez
| Decision Date | 13 August 1981 |
| Parties | The PEOPLE of the State of New York v. Linda CORTEZ and Candida Delmoral, Defendants. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., New York County (Elizabeth Phillips Marsh, Asst. Dist. Atty., of counsel), for the People.
Joseph Suraci, New York City, for defendant Cortez.
Robert R. Race, New York City, for defendant Delmoral.
The primary question before this court on the defendants' motion to inspect the grand jury minutes is what size must a sawed-off shotgun be before it will qualify as a prohibited "firearm" under Penal Law section 265.00(3). The statute reads that a " 'firearm' means any pistol, revolver, or sawed-off shotgun or other firearm of a size which might be concealed upon the person, except an antique firearm."
Although the New York Joint Legislative Committee on Firearms and Ammunition reported in 1965 that New York had "flatly outlawed all sawed-off shotguns," 1 the statute does not "flatly" outlaw sawed-off shotguns, but only those "which might be concealed upon the person". (emphasis supplied) Lacking a weapon-sized standard as a guide, trial and appellate courts have published a number of decisions which are inconsistent with each other, misinterpret each other, and often are factually and historically inaccurate.
This legislative failure has triggered a double attack on the indictment.
First, it is claimed that the statute is unconstitutionally vague.
Second, it is claimed that the evidence before the grand jury was insufficient as a matter of law to show that the weapon in question was capable of being concealed upon the person.
The facts in this case are quite straightforward. On August 18, 1979, at approximately 4:30 A.M., the defendants Linda Cortez and Candida Delmoral were sitting in an automobile in upper Manhattan. In the center floor of the car a police officer observed a part of a sawed-off shotgun partially hidden under the seat. The defendants were arrested and indicted for criminal possession of a weapon in the third degree.
The weapon was a .12 gauge Browning semiautomatic shotgun loaded with four live rounds. Both the barrel and the stock had been cut down. The barrel is 13 3/8 inches in length and the overall length is 26 3/8 inches. Both defendants are 5 ft. 4 in. tall. Cortez gave her weight as 122 pounds and Delmoral gave her weight as 155 pounds.
Before analyzing the complex legislative and judicial history of the statutes in question, I believe that it would be helpful to discuss the nature of the shotgun and its illegitimate progeny.
Shotguns are long-barrelled firearms designed to be fired from the shoulder. The Browning company sell shotguns with barrels ranging from 20 inches to 36 inches. The stocks are usually 14 inches. The gauge of the shotgun refers to the inside bore diameter of the barrel. A 10-gauge shotgun has a bore of .775 of an inch; 12-gauge .725; 16-gauge .665; 20-gauge .615; 28-gauge .545; . 410 bore .410.
All shotgun barrels are chambered to accept shells of specific length. Ignited by a fast acting smokeless powder, shells consist of a number of lead cylindrical pellets of various sizes. The smallest size is .08 inch and the largest .33 inch (00 buckshot). The number of lead pellets per load range from over 730 for the smallest pellets to 15 for the 00 buckshot (Browning catalogue 1979).
Unlike the rifle, the shotgun is a short-range weapon. Most shotguns have a "choke" at the end of the barrel which tends to constrict the dispersal of the pellets when the gun is fired. Thus a "full choke" should place 65%-75% of the pellets in a 30-inch circle 40 yards distant. Other chokes will cause less constriction, and no choke at all would cut the area to 25%-30%. In other words, the choke performs much the same function as the variable nozzle on a water hose.
The choke is particularly noteworthy as it applies to sawed-off shotguns, since cutting the barrel will remove the existent choke and if fired cause a wider dispersion of pellets and thereby create greater danger to anyone in the path of the shot. While barrel length has little to do with shot dispersal, 2 the removal of choke is quite significant.
As early as 1898, Winchester, the famous firearm manufacturer, had introduced a shotgun with a 20-inch barrel, which it promoted as a police weapon, useful in riot control. This type of shortened weapon was adopted by the American expeditionary forces during World War I and used as a trench gun. Its appearance at the front prompted the German government to lodge an official complaint, based on humanitarian grounds, that the use of the gun was contrary to the laws of war. 3
By the mid-1920s the sawed-off shotgun had found favor in criminal circles. This gun, unlike those manufactured with short barrels, attained its characteristic short length through the simple use of a hacksaw. As one writer described the gangster weapon, it was 4
It is evident that the sawed-off shotgun is a particularly dangerous weapon for two reasons, apart from the danger associated with any weapon which can cause death. First, the removal of the choke, by cutting the barrel, exposes potential victims to greater peril. Second, cutting the barrel and/or the stock makes it easier to conceal.
There simply is no legitimate use for the sawed-off shotgun. Thus, contrary to popular opinion and a legislature which is seemingly reluctant effectively to clarify the gun laws because of a fear of the "gun lobby," the National Rifle Association does not lobby against legislative restrictions with respect to sawed-off shotguns.
"There is no legitimate sporting use" for the sawed-off shotgun described in this case, according to Robert Sears, Senior Associate Technical Editor of the NRA's official journal, "The American Rifleman." Although shooting from a car would provide certain leverage for a shotgun whose stock had been cut down, as Mr. Sears put it: "You don't shoot game from a car." The NRA will not advertise any weapon which is not meant for a legitimate sporting purpose.
With this background we can now examine the legislative, constitutional, and judicial history of sawed-off shotguns.
Sawed-off shotguns first joined the galaxy of weapons recognized as dangerous by the State of New York through an amendment to the Penal Law passed during the legislative session of 1931. 5 The debut of the sawed-off shotgun in New York's Penal Code preceded by three years its initial appearance in a federal statute, the National Firearms Act of 1934. That act prohibited sawed-off shotguns which had either an overall length of less than 26 inches or a barrel(s) of less than 18 inches.
As indicated, although the New York Joint Legislative Committee on Firearms and Ammunition reported in 1965 that New York had "flatly outlawed all sawed-off shotguns," the Penal Law, unlike the federal statute, has never defined the prohibited features of a sawed-off shotgun--its size. As a result, the Legislature's proclaimed accomplishment of having flatly outlawed sawed-off shotguns may be viewed as rhetoric rather than reality, since concealability is essential for liability.
The issue of a weapon's concealability has occupied a substantial amount of legislative time since the inception of the Penal Code in 1881. Although concealability is the touchstone of illegally possessed weapons, it is interesting to note that just the reverse was the basis of early Colonial law. Under English common law, it was a misdemeanor to walk about in public openly armed, a situation which might "terrorize the King's subjects." To carry a concealed weapon, however, was no crime at all. 6 This prohibition was adopted in Colonial Massachusetts and re-enacted after the American Revolution. The first state to enact legislation prohibiting concealed weapons was the frontier state of Kentucky in 1812.
A concealed weapons provision, section 412, was included in the New York Penal Code of 1881. It read: "A person who carries concealed about his person any kind of fire-arms ... such as is usually employed in attack or defense of the person, is guilty of a misdemeanor." (Emphasis in original.)
Constructive possession of weapons was prohibited for the first time in New York in (Darling, supra, at 423, 139 N.Y.S. 277.)
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