People v. Davis

• Decision Date: 31 December 1981
• Citation: 112 Misc.2d 138,446 N.Y.S.2d 159
• Parties: The PEOPLE of the State of New York v. Kenny DAVIS, Defendant.
• Court: New York City Court

Page 159

446 N.Y.S.2d 159

112 Misc.2d 138

The PEOPLE of the State of New York v. Kenny DAVIS, Defendant.

Criminal Court of the City of New York,

Bronx County.

Dec. 31, 1981.

Mario Merola, Dist. Atty. by Beverly Foster, New York City, for people.

Caesar Cirigliano, New York City, Legal Aid by Edmund Byrnes, New York City, for defendant.

OPINION OF THE COURT

WILLIAM D. FRIEDMANN, Judge.

The defendant moves following a Jury Trial, pursuant to CPL 330.30(1) to set aside his conviction of Criminal Possession of a Weapon in the Fourth Degree (PL Section 265.01(1)).

The sole issues presented are (1) whether this trial court erred in refusing to instruct the jury that Penal Law Section 265.01(1) should be construed as defining a crime requiring the element of scienter or mental culpability and (2) whether the concealability of a sawed-off shotgun, measuring some 27 1/4 inches in length, within the meaning of Penal Law Section 265.00(3), as constituting a "firearm", should have been resolved by the court as a matter of law and not given to the jury as a question of fact.

BACKGROUND

Defendant was arrested while lying on a bed. He was apparently asleep and partially clothed. A sawed-off shotgun measuring 27 1/4 inches in over-all length was found craddled in or through his arms. At the trial, the prosecution contended that the defendant possessed the shotgun before he fell asleep and that it was there at the time of arrest. This was contested in summation by the defendant who urged that the shotgun was somehow "planted" upon the defendant by some unidentified person. The court determined that there was no evidence in the trial record tending to show that the defendant's possession of the weapon was temporary, innocent, excusable or involuntary.

MENTAL CULPABILITY NOT REQUIRED UNDER PENAL LAW SECTION 265.01(1)

Careful examination of Penal Law Section 265.01, and its six subdivisions, reveals a clear legislative intention to impose a standard of strict, or absolute, criminal liability with respect to those items covered therein. Penal Law Section 265.01(1) states that:

"A person is guilty of criminal possession of a weapon in the fourth degree when:

(1) He possesses any firearm, electronic dart gun, gravity knife, switchblade knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub or slingshot; or..."

(Underscoring ours)

Subdivisions (2) and (3) of PL Section 265.01 require culpable mental states, to wit, that defendant possess "with intent to use..." (PL 265.01(2) and that defendant "knowingly has in his possession..." (PL 265.01(3)). However, a mental state of mind is not included with respect to subdivisions (1), (4), (5) and (6).

It would seem reasonable that if the legislature had intended a culpable mental state or "scienter" to be a required element of PL Section 265.01(1) it would have specifically included such element as it found necessary to do so with respect to PL Section 265.01(2) and 265.01(3) (See McKinney's PL 265.01 Practice Commentary by Arnold D. Hechtman).

The legislature unquestionably has the power, in the protection of the public interest, to dispense with the element of "scienter" in defining a crime (People v. Warden of City Prison, 154 A.D. 413, 139 N.Y.S. 277; People v. Tracey, A., 97 Misc.2d 1053, 413 N.Y.S.2d 92; and see "Construing Gun Control Laws--Validity", 28 A.L.R.3d 845, 872; and Criminal Law--Scienter--Intent Not Required for Conviction of Carrying Concealed Deadly Weapon Aboard Aircraft", 44 Ford L.R. 861).

Scienter, guilty knowledge or intent, is not a necessary element of the crime of possessing a concealed weapon (People v. Newton, 72 Misc.2d 646, 340 N.Y.S.2d 77; People v. Roberts, 73 Misc.2d 500, 342 N.Y.S.2d 757, app. dismd. 79 Misc.2d 243, 360 N.Y.S.2d 151; People v. Terwilliger, 172 Misc. 70, 14 N.Y.S.2d 267; People v. Weisman, 34 Misc.2d 670, 229 N.Y.S.2d 171).

The defense, in making the argument that a standard of strict liability is not applicable with respect to PL Section 265.01(1), relies upon People v. Trisvan, 49 A.D.2d 913, 373 N.Y.S.2d 405 (intoxication as effecting weapon possession), People v. Carlo, 46 A.D.2d 764, 361 N.Y.S.2d 168 (hallucinogenic drug as effecting weapon possession) and upon People v. Valentine, 54 A.D.2d 568, 387 N.Y.S.2d 25 (intoxication as effecting weapon possession). Examination of these authorities does not persuade this court that a culpable mental state is a necessary element of weapon possession under PL Section 265.01(1).

These authorities do appear to hold that "criminal liability" requires at the very least a "voluntary act" (People v. Carlo, supra, citing People v. Robinson, 2 Parker Cr.Rep. 235; and see 22 C.J.S. Criminal Law § 69).

Penal Law Section 15.10, in relevant part, states "The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing..."

The doing of an act such as possessing a weapon may by statute (PL 265.01(1)) be made criminal per se without regard to the doer's intent or knowledge, but nevertheless the act of possessing must not be involuntary as an involuntary action is not criminal. These two concepts are not the same. They are not mutually exclusive (People v. Newton, 72 Misc.2d 646, 340 N.Y.S.2d 77.)

Upon consideration of all the authorities relied upon by the defendant this court finds that they do not support the position that PL Section 265.01 requires an instruction as to a culpable mental state. Further, in the absence of any evidence of intoxication or other involuntary act in the trial record, there was no necessity of an instruction being given as to an involuntary act, or an innocent act, which would have had an effect on defendant's possession of a weapon (See PL Section 10.00(8)).

It should be noted that even when our courts are called upon to construe criminal statutes requiring a standard of strict liability, such as with PL Section 265.01(1), that the imposition of harsh and unreasonable consequences can be avoided by discrete judicial action.

When sympathetic or mitigating circumstances are supported by the evidence, spelling out an innocent, temporary, or excusable possession of a proscribed weapon, such possession can, in the interests of justice, be dealt with by motion (CPL Section 210.40, CPL Section 170.40) or effected through the varied aspects of a judge's discretion in sentencing (CPL Articles 370 et seq.).

SAWED-OFF SHOTGUN--WHEN A FIREARM IS A QUESTION OF LAW OR FACT

In order to determine when a sawed-off shotgun is a firearm for purposes of PL 265.01(1), reference must be made to PL Section 265.00(3). Section 265.00(3), in relevant part, defines "firearm... as a... sawed-off shotgun or other firearm of a size which may be concealed upon the person..."

The gist of the crime of PL 265.01(1) is not concealment but possession of a weapon that may be concealed (People v. Raso, 9 Misc.2d 739, 170 N.Y.S.2d 245). However, the limited reported opinions determining when a weapon has the potentiality of concealment, in order for the same to qualify as a "firearm" within the meaning of PL 265.00(3), have resulted in considerable uncertainty.

A review of these limited appellate and trial court decisions leads one to hope for some early clarification by the Court of Appeals or from the legislature.

Beyond agreement that a sawed-off shotgun serves no lawful or legitimate purpose, there appears to exist considerable conflict and confusion concerning when a sawed-off shotgun qualifies for inclusion under the statutory sanctions of PL Section 265.00(3).

Although the reporting courts have specifically found that the legislative intent in respect of Section 265.00(3) was directed to a type of weapon which could be concealed upon the person and not to the particular shotgun involved, (People v. Palermo, 36 A.D.2d 565, 317 N.Y.S.2d 724; People v. Roberts, supra), these same courts have in actual implementation resorted to a case by case or weapon by weapon analysis, looking without consistency either to the measurement of the weapon or the measurement of the weapon in relation to the physical characteristics of the alleged possessor or to the nature of the possessor's clothing or to his immediate surroundings.

The First Department has taken the position that a trial court should submit to the jury, as a question of fact, the issue of whether a weapon is concealable and therefore a proscribed firearm. (People v. Cohen, 57 A.D.2d 790, 394 N.Y.S.2d 683). The First Department's ruling in Cohen, supra, which held that the issue of concealability is a proper jury question, was followed and extended in People v. Ahern, 104 Misc.2d 13, 427 N.Y.S.2d 549 (27 inch weapon; proper jury question; motion to dismiss indictment denied) and People v. Leon, 53 A.D.2d 809, 384 N.Y.S.2d 714 (19 1/2 inch weapon; conviction affirmed; no opinion).

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