People v. Santiago

• Decision Date: 13 August 1986
• Citation: 506 N.Y.S.2d 136,133 Misc.2d 161
• Parties: The PEOPLE of the State of New York v. Juan SANTIAGO, Defendant.
• Court: New York Supreme Court

Page 136

506 N.Y.S.2d 136

133 Misc.2d 161

The PEOPLE of the State of New York v. Juan SANTIAGO, Defendant.

Supreme Court, Trial Term New York County, Part 82.

Aug. 13, 1986.

Robert M. Morganthau, Dist. Atty., New York County by Ruth Sussman, of counsel, for people.

Legal Aid Society by Andrew Robinson, New York City, of counsel, for defendant.

ALFRED H. KLEIMAN, Justice.

Defendant was indicted on two counts of Criminal Possession of a Weapon in the Third Degree pursuant to Penal Law § 265.02(1) (possession of a weapon in the fourth degree: possession of any firearm, having been previously convicted of any crime) and Penal Law § 265.02(4) (possession of a loaded firearm). Defendant now moves to dismiss the indictment on the grounds that the Grand Jury proceeding was defective because the District Attorney

did not adequately charge the Grand Jury on the law.

THE ISSUES

According to a police ballistics report, upon which both parties rely on this motion, the gun in question is a working 12 gauge Sears and Roebuck J.C. Higgins bolt action shotgun loaded with four live rounds. The barrel was cut down to a length of 15 inches; the stock also was cut down so that the overall length of the gun is 26 1/2 inches.

Penal Law section 265.00(3)(b) reads:

"Firearm" means * * * (b) a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than twenty-six inches.

Penal Law section 265.00(12) states:

"Shotgun" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.

The District Attorney instructed the Grand Jury that a "firearm" was defined "in pertinent part as a shotgun having one or more barrels less than eighteen inches in length" (GJM p. 12). He did not instruct the Grand Jury to consider the overall length of the gun pursuant to § 265.00(3)(b) nor did he instruct the Grand Jury as to the definition of "shotgun" or seek to distinguish a "shotgun" from a "weapon made from a shotgun."

Now, on this motion to dismiss, defendant sets forth two basic arguments. First he contends that to fall within the definition of "firearm" set out in § 265.00(3)(b) a shotgun must have both a barrel length of less than eighteen inches and an overall length of less than twenty-six inches. He thus argues that the statute must be read in the conjunctive rather than the disjunctive. Second, defendant argues that even should the statute be read in the disjunctive, it distinguishes between "shotguns" and "weapons made from shotguns" and that the weapon here falls into the latter category and must therefore be judged only by the twenty-six inch overall length standard.

These are issues of first impression and are surprisingly not susceptible of easy answers.

DISCUSSION

This court's inquiry into the meaning of the statutes in question is guided by Penal Law § 5.00 which reads:

The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of law.

Thus while statutory language must be given its commonly accepted meaning, this need not end the analysis. See People v. Richardson, 4 N.Y.2d 224, 173 N.Y.S.2d 587, 149 N.E.2d 875 (1958) (in which the conjunctive "and" as it appears in Art. 1, § 6 of the New York Constitution was construed in the disjunctive). This court must therefore look beyond the statutory language to determine legislative intent, the policy considerations underlying the statute and the ultimate results sought by the Legislature. As stated by the Court of Appeals,

We must effectuate the legislative purpose and design as * * * we find them expressed by the language and spirit of the statute * * * Gibbs v. Arras Brothers, 222 N.Y. 332, 334-335, 118 N.E. 857 (1918) (emphasis mine).

Accordingly I have extensively reviewed the legislative history of the relevant New York statutes as well as parallel provisions in other jurisdictions.

I.

New York's current statutory classification of certain shotguns as "firearms" There is, however, another set of Federal provisions governing sawed-off shotguns found in the Internal Revenue Code. Part of the National Firearms Act, 26 U.S.C. § 5801 et seq., these regulations provide for the registration of "firearms" and taxation on their transfer or delivery. The definition of "firearm" in 26 U.S.C. § 5845(a), as amended by Title II of the Gun Control Act of 1968 reads in pertinent part:

                grew out of dissatisfaction and confusion arising from the previous subjective standard of PL § 265.00(3) which defined "sawed-off shotguns" as being "of a size which may be concealed upon the person."   The present version, enacted in 1982, is an attempt to set down precise objective standards.  To this end, the Legislature adopted the definition of "firearm" in PL § 265.00(3)(b), supra, which is identical to the definition of "short-barreled shotgun" found in the United States Code at 18 U.S.C. § 921(a)(6).  This Federal provision is part of Chapter 44, entitled "Firearms" which was added to Title 18 by Title I of the Gun Control Act of 1968.  Sections 921 et seq. of Title 18 prohibit anyone not properly licensed from transporting "short-barreled shotguns" in interstate or foreign commerce and from selling or delivering same to any person.  The definition of "shotgun" under 18 U.S.C. § 921(a)(5), is also identical to New York's Penal Law § 265.00(12).  The legislative history of these Federal statutes does not directly resolve the conjunctive/disjunctive ambiguity or the distinction between "shotgun" and "weapon made from a shotgun."   Nor is there any Federal case law on point
                

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; ^*

The reason for the different language of the two Federal shotgun provisions, one amended by and the other added by the Gun Control Act, is not forthcoming. The legislative history of 18 U.S.C. § 921(a)(6), however, does state,

The term "short-barreled shotgun" is defined as a shotgun which comes within the purview of the National Firearms Act (26 U.S.C. 5801 et seq.); that is, a shotgun having a barrel less than 18 inches in length or a modified shotgun having an overall length less than 26 inches. (emphasis added) (H.R.Rep. No. 1577, 90th Cong., 2nd Sess. 6, reprinted in 1968 U.S. Code Cong. & Ad. News 4416.

Certainly then the application of these two provisions to the same shotgun should not yield different results. A gun which is a "firearm" under 26 U.S.C. § 5845(a)(1) should also be a "short-barreled shotgun" within the meaning of 18 U.S.C. § 921(a)(6).

In any event, the legislative history of New York Penal Law § 265.00(3)(b) reveals that the draftsmen certainly meant to use 26 U.S.C. § 5845(a), not 18 U.S.C. § 921(a)(6), as their model. State Senator Tarky Lombardi, Jr., who introduced the 1982 amendment into the Senate, stated in the Chapter Law Memorandum that the purpose of amending Penal Law § 265.00 was "to eliminate the existing ambiguity in the Penal Law by clearly defining 'sawed-off shotgun' and to adopt similar standards used in 27 states and the National Firearms Act " (emphasis added). New York State Legislation Annual, 1982, at 153. See also N.Y. State Assembly "Memorandum in Support of Legislation" for Assembly Bill 9822, 1982.

Senator Lombardi took particular note of the opinion in People v. Cortez, 110 Misc.2d 652, 663, 442 N.Y.S.2d 873 (1981) by my respected colleague Justice Irving Lang who wrote,

* * * there is no reason why our legislature could not easily solve the problem [of the subjective concealability standard] by adopting the same law that is standard in 27 states and by the National Firearms Act. Those laws simply prohibit Arnold Hechtman's Practice Commentary for PL § 265.00 also indicates that the Legislature intended to copy the National Firearms Act definition. After noting the impetus of Judge Lang's opinion, the commentary continues:

the possession of a sawed-off shotgun with a barrel of less than 18 inches or an overall length of less than 26 inches. Id., 442 N.Y.S.2d at 879 (emphasis in original).

Another puzzling aspect is the draftmanship of the new provisions. Presumably they were modeled on the federal law which defines a shotgun in terms of either the barrel length or the overall weapon length. For some reason that is not readily apparent, the provisions here were drafted in the conjunctive rather than the disjunctive. (emphasis added).

The reason appears to be that the draftsmen unintentionally used the "wrong" Federal statute as a model.

The New York legislative history thus reveals an intent to adopt a standard consistent with a disjunctive reading of the language actually enacted. There is also support for such an interpretation from at least one appellate court decision, albeit only in dictum. In People v. Tucker, 102 A.D.2d 535, 477 N.Y.S.2d 386 (2d Dept.1984), decided under the old subjective concealability standard, the court noted that the barrel of the shotgun defendant Tucker had been convicted of possessing "measured fifteen and three-quarters inches, and thus the gun would qualify as a 'firearm' under the present statutory definition [PL § 265.00(3)(b) ] as well." Id., at 539, 477 N.Y.S.2d 386. The court took this position despite the gun's overall length of thirty and three-quarters inches.

Moreover, courts in at least two other states...