People v. Small

• Decision Date: 29 March 1993
• Citation: 157 Misc.2d 673,598 N.Y.S.2d 431
• Parties: The PEOPLE of the State of New York v. David SMALL, Defendant.
• Court: New York Supreme Court

Page 431

598 N.Y.S.2d 431

157 Misc.2d 673

The PEOPLE of the State of New York v. David SMALL, Defendant.

Supreme Court, Criminal Term New York County, Part 56.

March 29, 1993.

Arnold Taub, New York City, for defendant.

Robert Morgenthau, Dist. Atty., New York County (Rodrick Lankler, of counsel), for plaintiff.

HAROLD J. ROTHWAX, Justice:

The defendant broke into a car and stole the contents. He was apprehended as he emerged from the car. Among the items in the defendant's possession was an electronic stun gun. It was described by a witness in the grand jury as a black rectangular object having two prongs on one end. The defendant testified before the grand jury and admitted breaking into the car and stealing property. He testified further that he had taken the stun gun from the car without knowing what it was. He testified that he believed the black object to be a radar detector.

The defendant was indicted for criminal possession of a weapon in the third degree [PL 265.02[1]], based upon his possession of the electronic stun gun, one of the "per se" weapons proscribed by Penal Law § 265.01 subdivision 1. ¹ Electronic stun guns were added to the list of per se weapons in 1990 [L 1990 c 264]. The statute defines an electronic stun gun as "any device designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to such person." [PL 265.00[15-c]]

In his charge on the law of criminal possession of a weapon, the assistant district attorney instructed the grand jury that it was not necessary for the jurors to find that the defendant knew he possessed a stun gun; they need only find that the defendant was aware of possessing an object which was in fact a stun gun. The defendant contends that to hold him strictly liable for possession of an object without requiring proof that he knew the object was a weapon, violates basic principles of due process of law. The issue presented is whether the assistant district attorney's legal instruction was correct as a matter of statutory interpretation and, if it were correct, whether the statute so interpreted would offend constitutional principles.

The assistant district attorney's charge is supported by the commonplace statement in opinions construing Penal Law § 265.01 and § 265.02, that criminal possession of a weapon is a strict liability crime requiring no particular mental culpability. [See, e.g., People v. Messado, 49 A.D.2d 560, 370 N.Y.S.2d 616 [1st Dept.1975]; People v. Ansare, 96 A.D.2d 96, 468 N.Y.S.2d 269 [4th Dept.1983]; People v. Newton, 72 Misc.2d 646, 647, 340 N.Y.S.2d 77 [Sup.Ct.Queens Co.1973]; People v. Davis, 112 Misc.2d 138, 140, 446 N.Y.S.2d 159 [Crim.Ct.Bronx Co.1981]; Matter of Ronnie L., 121 Misc.2d 271, 273, 463 N.Y.S.2d 732 [Fam.Ct.N.Y.Co.1983]; and see, People v. Velasquez, 139 Misc.2d 822, 824-825, 528 N.Y.S.2d 502 [Sup.Ct.N.Y.Co.1988]]

In spite of the lack of equivocation in this assertion, a close reading of these cases reveals qualifications upon strict liability for weapons possession. First, these cases invariably involve possession of a firearm. Second, the Penal Law requires proof, even as to strict liability crimes, of a "voluntary act" which includes in regard to possessory crimes, proof of an awareness of "physical possession or control thereof for a sufficient period to have been able to terminate it." [PL 15.00 [2]] This statute has been interpreted by appellate courts as imposing a requirement of proof of "knowing" possession. [People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637, 488 N.E.2d 458 [1985]; People v. Cohen, 57 A.D.2d 790, 791, 394 N.Y.S.2d 683 [1st Dept.1977]] In Cohen, the trial court charged the jury that the defendant could be convicted of possessing a firearm found in his car "by mere possession", and that the defendant does not "have to have any knowledge that he is carrying the firearm to violate the statute." The Appellate Division reversed the defendant's conviction, in reliance upon Penal Law § 15.00 subd. 2. ²

Read literally, Penal Law § 15.00 subd. 2 requires only an awareness that the proscribed object was on the defendant's person or otherwise under the defendant's dominion and control. [See, People v. Velasquez, supra, 139 Misc.2d at p. 823, 528 N.Y.S.2d 502] However, because guns are all too familiar objects in our society, where the object is a firearm, an awareness of possessing it logically gives rise to an inference of knowledge of the nature of the object possessed. [People v. Lynch, 116 A.D.2d 56, 61, 500 N.Y.S.2d 236 [1st Dept.1986]; Commonwealth v. Bacon, 374 Mass. 358, 361, 372 N.E.2d 780 [1978]] No reported decision under Article 265 of the Penal Law has held anyone liable for criminal possession of a firearm ³ where the accused successfully disclaimed knowledge of the essential character of the thing possessed. In one case where the defendant apparently claimed to be unaware of the nature of the object in the pocket of a jacket he obtained from another person, the court disbelieved the defendant. [ Matter of Ronnie L., supra, 121 Misc.2d at p. 277, 463 N.Y.S.2d 732] Applying the "voluntary act" requirement, the court found that the defendant "was aware that he possessed the gun." [Id.] Other courts have relied upon the voluntary act requirement to permit the jury to consider the defendant's intoxication [ People v. Carlo, 46 A.D.2d 764, 361 N.Y.S.2d 168 [1st Dept.1974] [involuntary intoxication]; People v. Trisvan, 49 A.D.2d 913, 373 N.Y.S.2d 405 [2d Dept.1975] [voluntary intoxication]; People v. Valentine, 54 A.D.2d 568, 387 N.Y.S.2d 25 [2d Dept.1976] [id.]] as a defense to criminal possession of a firearm. [See, People v. Davis, supra, 112 Misc.2d 138, 446 N.Y.S.2d 159]

In cases involving the possession of a gun, our courts exonerate defendants whose possession was foisted upon them by circumstances beyond their control. For example, a defendant who knowingly possessed a firearm while aboard a plane which made an unscheduled stop within the United States, was held to be nonculpable under the voluntary act requirement. [People v. Newton, 72 Misc.2d 646, 340 N.Y.S.2d 77 [Sup.Ct.Queens Co.1973]]. In another case, a defendant who testified he did not know that a bag he took away from an assailant contained a gun until after he came into possession of the bag, was entitled to a jury instruction on the defense of temporary, innocent possession. [People v. Legett, 140 A.D.2d 1, 531 N.Y.S.2d 559 [1st Dept.1988]] The Court of Appeals has noted in discussing the defense of temporary innocent possession of a weapon, "that possession--an essential element of criminal possession of a weapon--does not turn upon physical handling of the prohibited weapon alone", but permits a defense of legal excuse for having a weapon in one's possession. [People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 [1980]; see, People v. Messado, supra 49 A.D.2d 560, 370 N.Y.S.2d 616] ⁴

This review demonstrates that our courts, in effect, do read a mens rea requirement into the possession of a weapon statutes, although noting that the statutes do not expressly require proof of any particular mental culpability. This result is consistent with the rule of statutory construction set forth in the Penal Law [PL 15.15[2]] disfavoring strict liability. The rule states that "[a]lthough no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability." [PL 15.15[2]]

In order to determine whether the legislature clearly indicated an intent to impose strict liability for possession of the weapons designated in section 265.01[1] of the Penal Law, it is necessary to examine the origin of the section. As explained in People v. Persce, 204 N.Y. 397, 97 N.E. 877 [1912], prior to 1905 possession of the weapons specified by the predecessor statute [Penal Code 410] to section 265.01 was criminal only when accompanied by an attempt or an intent to use them against another. [204 N.Y. at p. 401, 97 N.E. 877] In 1905 the section was changed to make possession of the designated weapons ⁵ a crime without evidence of an intent to use. In upholding the constitutional power of the legislature to eliminate the element of intent to use these weapons, the Court of Appeals made two important observations. First, the court noted that "the possession which is meant is a knowing and voluntary one", and would exempt possession "which might result temporarily and incidentally from the performance of some lawful act, [such] as disarming a wrongful possessor." Second, the court held that the statute thus limited came within the police power because "the well-understood character of [the designated weapons] make[s] it evident that the legislature were entirely justified in regarding them as dangerous and foul weapons seldom used for justifiable purposes ..." [Id. at p. 402, 97 N.E. 877 [emphasis added]]

Persce, while accepting the power of the legislature to prohibit simple possession of dangerous instruments, conditioned that acceptance upon proof that the possession was both "knowing and voluntary". Therefore, the court noted, the innocent acquisition of such a weapon would negate the requirement that possession be voluntary. Although the court did not elaborate upon the degree of knowledge required for culpability, it was the "well understood" character of the object which made its possession culpable, without "delaying until opportunity had bred" to use the object unlawfully. [204 N.Y. at p. 403, 97 N.E. 877]

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