People v. Furey

• Decision Date: 06 July 1961
• Parties: PEOPLE of the State of New York, Respondent, v. Michael J. FUREY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 189

217 N.Y.S.2d 189

13 A.D.2d 412

PEOPLE of the State of New York, Respondent, v. Michael J. FUREY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 6, 1961.

Arthur Layton, New York City, for appellant.

Walter E. Dillon, New York City, of counsel (Isidore Dollinger, Dist. Atty., New York City), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, STEVENS and EAGER, JJ.

BOTEIN, Presiding Justice.

Defendant has been convicted, after trial, of violation of Section 1897, subdivision 4, of the Penal Law (possession of a firearm after having been previously convicted of crime). There was adequate evidence to support the essential jury finding that defendant had previously been convicted of the crime of petit larceny.

A passerby named Willard Reese, testified that at about 3:00 a. m. one morning he observed defendant proceeding along Westchester Avenue, carrying an unloaded pistol in clear view and clicking it as he walked. Reese arranged that the police be notified and a radio patrol car responded immediately. One of the police officers who had been in the patrol car testified that as he emerged from the car defendant threw the pistol over his shoulder. The officer recovered the gun and placed defendant under arrest.

Defendant testified that while walking he saw 'this shiny object in the street'--the pistol recovered by the officer--and picked it up. He had only walked about a block, squeezing the trigger as he went along, when he saw the police car and dropped the gun to the ground. When questioned at the police station he testified he had never owned a gun and had never seen the gun that had been received in evidence before he observed it in the street.

In defining the crime, the trial judge charged essentially, without exception, the language of Section 1897, subdivision 4, of the Penal Law, which reads as follows:

'Any person over the age of sixteen years, who shall have in his possession in any city, village or town of this state, any pistol, revolver or other firearm of a size which may be concealed upon the person, without a written license therefor, issued to him as hereinafter prescribed, shall be guilty of a misdemeanor, and if he has been previously convicted of any crime he shall be guilty of a felony.'

Later on he charged that '[i]f you find that he had it [the pistol] and has been convicted of a crime previously, he is guilty of a felony.' It will be noted that these instructions, if followed literally, left the jury with no alternative other than to convict, since defendant admitted brief possession and there was no leeway given the jury to find an innocent possession.

Some time after it had retired, the jury, evidently concerned about the legal implications of naked possession, returned with the question: 'Your Honor, does the possession of a gun without a permit constitute a crime, regardless of the manner in which possession is secured and regardless of the intent to retain possession?' In response, again without exception, the trial judge stated: 'Ladies and gentlemen, I read you this very short section of the Penal Law. It is self-explanatory. It says nothing about intent to retain possession or intent to do anything.' And once again the judge read subdivision 4 of Section 1897.

This is not a case, as contended by defendant, in which the trial court did not amplify or clarify a charge that from the tenor of the jurors' request had evidently left them confused or in doubt (People v. Gonzalez, 293 N.Y. 259, 56 N.E.2d 574; People v. Gezzo, 307 N.Y. 385, 121 N.E.2d 380). To the contrary, he had resolved their doubts, as evidenced by the fact that the foreman assured the court that 're-reading the law constitutes a complete answer to the question.'

The difficulty with the judge's answer is that in clearing away the jurors' confusion he instructed them erroneously. In People v. LaPella, 272 N.Y. 81, 4 N.E.2d 943, it was held that here may be an excuse for possession of a prohibited weapon, such as finding it and carrying it for the purpose of delivering it to the police. As was stated in People v. Persce, 204 N.Y. 397, 402, 97 N.E. 877, 878: 'Of...