People v. Delgardo
| Decision Date | 01 December 1955 |
| Parties | The PEOPLE of the State of New York v. Pedro DELGARDO. City Magistrate's Court of City of New York, Upper Manhattan District |
| Court | New York Magistrate Court |
Patrick J. Healy, New York City, for the People.
Aberman & Greene, New York City, by Murray H. Paloger, New York City, of counsel, for defendant.
KAPLAN, City Magistrate.
The defendant has been charged with a violation of Section 436-5.0(g) of the Administrative Code of the City of New York. The defendant was arrested on July 29, 1955 in his store at 1760 Madison Avenue, New York City. A policeman testified that he visited said premises and observed certain pistols and revolvers hanging from a wire strung across the store as well as in a showcase. The policeman asked the defendant if the pistols and revolvers were for sale which question was affirmatively answered and the price stated. Thereafter the defendant was arrested and eighteen of the said pistols and revolvers were seized, five of which were placed in evidence as representative of all. These pistols and revolvers were of a metallic substance and each was of a type commonly known as a toy pistol or revolver capable of use with explosive paper caps. They appeared to be substantial duplications in outward physical appearance, but not in mechanical operation or makeup, of the (a) Colt frontier revolver, (b) 25 calibre pocket type automatic pistol and (c) pocket type percussion revolver. None were capable of using bullets, pellets or blank cartridges of any kind.
The defendant has moved to dismiss on the grounds that Section 436-5.0(g) of the Administrative Code of the City of New York is unconstitutional in that (1) it is inconsistent with Section 1894-a of the Penal Law of the State of New York; (2) that the state by Sections 1894-a, 1896 and 1897 of the Penal Law has preempted the entire field with respect to the sale, use and possession of toy cap and imitation pistols; (3) the ordinance does not set up standards by which the crime is adequately defined.
The sole question presented is: Must Section 436-5.0(g) of the Administrative Code of the City of New York, prohibiting the sale, possession and use of toy or imitation pistols which substantially duplicate actual pistols, be declared invalid as unconstitutional in the light of the various provisions of the Penal Law of this State.
Section 436-5.0(g) of the Administrative Code of the City of New York provides that:
It is not necessary to inquire deeply into the conditions leading to the enactment of this ordinance. The incidence of holdups with toy or imitation pistols or revolvers in the City of New York is a matter so notorious as to admit of no doubt as to its existence. The problem is important and warrants some degree of regulation but it remains to be considered whether the City Council of the City of New York had the power to legislate with respect thereto in the manner provided in Section 436-5.0(g) of the Administrative Code.
The Constitution of the State of New York, Art. IX, § 12, and the City Hime Rule Law, § 11, subd. 2, have conferred upon the cities the power to adopt and amend local laws relating to the 'property, safety or healta' of their inhabitants, provided, however, that such local laws are not inconsistent with the Constitution and the laws of the State. Such local laws may not 'change or supersede any act of the legislature.' Schieffelin v. Berry, 127 Misc. 178, 215 N.Y.S. 341, affirmed 217 App.Div. 451, 216 N.Y.S. 367; Id., 243 N.Y. 603, 154 N.E. 623; Hayward v. City of Schenectady, 251 App.Div. 607, 297 N.Y.S. 736. An ordinance which is in conflict with a state law of general character and statewide application is invalid. New Rochelle Trust Co. v. White, 283 N.Y. 223, 28 N.E.2d 387; People v. Westchester County, 282 N.Y. 224, 26 N.E.2d 27; Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153.
There are several modes by which a local ordinance may come into conflict with a state law. Firstly, a conflict may exist between law and ordinance because one prohibits what the other authorizes, or vice versa. Defendant here claims a conflict exists because Section 1894-a of the Penal Law makes lawful 'at all times' the use and sale of toy cap pistols, toy canes, toy guns or other devices in which paper caps containing a stipulated amount of explosive compound are used. By its enactment of Section 436-5.0(g) of the Administrative Code, the City of New York bans the sale, use and possession of any toy or imitation pistol or revolver which substantially duplicates an actual pistol or revolver unless certain prerequisites are met.
Section 1894-a of the Penal Law sets forth the definition of 'fireworks' and excludes from said definition:
'* * * (2) toy pistols, toy canes, toy guns or other devices in which paper caps * * * are used, * * * the sale and use of which shall be permitted at all times.' (Emphasis supplied.)
The use of toy pistols and revolvers using paper caps are not per se harmful. They are customarily used by children in play with or without the caps. Webster's New International Dictionary, Second Ed., Vol. III (1945) defines 'toy' as a 'plaything; something that is merely amusing or diverting; a thing to play with; specif., an article, often an imitation of a living or of a manufactured thing, on a small scale, designed and made for the amusement of a child or for his use in play.' In common speech the term embraces only such things as are primarily intended for the entertainment and amusement of children. Zeh v. Cadwalader, 42 F. 525. The danger lies in the illegal use thereof by nefarious individuals intent on the commission of crime. The legislature of the state recognized that such instruments were susceptible of other uses and to prevent the illegal use thereof enacted Sections 1897 and 1898 of the Penal Law which makes it a crime to carry or possess as 'imitation pistol' with intent to use the same unlawfully against another.
The City ordinance under consideration prohibits the sale, possession or use of 'any toy or imitation pistol or revolver' which substantially duplicates an actual pistol or revolver unless certain requirements are met. The ordinance does not specifically exempt toy or imitation pistols or revolvers that use paper caps which are permitted 'at all times' by Section 1894-a of the Penal Law without restriction as to size, color or appearance. The use of the word 'any' in the ordinance imports no limitation as to the type or kind of toy pistols or revolvers affected. Matter of Beach's Estate, 154 N.Y. 242, 48 N.E. 516. The word 'any' means 'every' and is to be applied indifferently and is invariably employed in the sense of all or each one of all. People v. Clark, 7 N.Y. 385; People v. Joyce, 112 App.Div. 717, 98 N.Y.S. 863; People v. Rosenheimer, 70 Misc. 433, 128 N.Y.S. 1093; In re Schuster's Will, 111 Misc. 534, 181 N.Y.S. 500. As used in the ordinance, it is a general word not limited or restricted by the context. As used, it means if there is a toy or imitation pistol or...
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