People v. Judiz
Decision Date | 10 February 1976 |
Citation | 381 N.Y.S.2d 467,344 N.E.2d 399,38 N.Y.2d 529 |
Parties | , 344 N.E.2d 399 The PEOPLE of the State of New York, Respondent, v. Peter JUDIZ, Appellant. |
Court | New York Court of Appeals Court of Appeals |
Steven Lloyd Barrett and William E. Hellerstein, New York City, for appellant.
Nicholas Ferraro, Dist. Atty. (Thomas A. Duffy, Jr., Kew Gardens, of counsel), for respondent.
We are required to decide here whether the City of New York may constitutionally forbid the possession of toy pistols which resemble real guns in certain specified ways.
Subdivision g of section 436--5.0 1 of the Administrative Code of the City of New York states:
Defendant was apprehended while in possession of a toy pistol which was black with a brown handle and resembled the sort of gun known as a Luger. Its barrel was not fully blocked with the same material as the barrel itself. He does not deny that he possessed the toy gun in issue. Instead, he argues that the city's Administrative Code provisions is unconstitutional in that it permits criminal sanction without a finding of specific intent to use the toy gun in an illegal manner. Defendant also argues that the structure and provisions of section 265.00 of the Penal Law indicate the State's intent to pre-empt the field of legislation with respect to criminality in connection with toy guns, since it requires that intent to use a toy gun unlawfully be proved (§ 265.01, subd. (2)) and does not provide for the inferring of intent from possession itself (§ 265.15, subd. (4)).
We uphold the defendant's conviction. In our view the ordinance here challenged is a valid exercise of the police powers delegated to the city by the State Constitution and the Municipal Home Rule provisions (N.Y.Const. art. IX, § 2; Municipal Home Rule Law, § 10).
A statute which creates a crime is a valid exercise of the police power of the State so long as there is a reasonable relationship between the public welfare and the act proscribed. Where the State has delegated the power to exercise the police power to a municipality, as is the case here, its ordinances are entitled to the same presumption of constitutionality as are those of the State itself (see Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539).
There is also no pre-emption by State law. Subdivision (2) of section 265.01 is not limited to imitation guns but applies as well to possession of 'any dagger, dangerous knife, dirk, razor, stiletto * * * or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another'. The statute's insistence on the element of intent and its observance of constitutional limitations on presumptions flowing from possession to prove that intent (§ 265.15, subd. 4) do not mean that local efforts to further control use through direct prohibition upon possession itself is precluded. In holding this very same city ordinance constitutional, one court has already noted: ...
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