People v. Tracey A.

• Decision Date: 26 January 1979
• Parties: The PEOPLE of the State of New York v. TRACEY A., * Defendant. Oneida County Court
• Court: New York County Court

Page 92

413 N.Y.S.2d 92

97 Misc.2d 1053

The PEOPLE of the State of New York v. TRACEY A., ^* Defendant.

Oneida County Court.

Jan. 26, 1979.

Richard D. Enders, Dist. Atty. (Raymond A. Tarkowski, Utica, of counsel), for the People.

Donald L. Austin, Public Defender (Frank E. Blando, Utica, of counsel), for defendant.

MEMORANDUM ORDER

JOHN J. WALSH, Judge.

The defendant is a sixteen year old female who has been indicted for an alleged burglary on September 8th, 1978. The indictment contains five counts, the first of which charges the crime of burglary in the first degree "armed with a deadly weapon." (Section 140.30, subdivision 1, of the Penal Law). This constitutes a Class B violent felony, mandating a state prison sentence (Section 70.02 Penal Law, effective September 1, 1978). The other counts charge burglary 2nd degree, grand larceny third, possession of a loaded firearm, and petit larceny. The defendant seeks to have the Court examine the Grand Jury minutes and dismiss the first count.

The defendant contends that the transcript of the testimony and evidence before the Grand Jury will disclose that the weapon with which it is alleged she armed herself was not a "deadly" weapon within the meaning of Section 10.00(12) of the Penal Law. The defendant further argues that such testimony will not establish that the defendant knew that the weapon was loaded and was capable of being fired at the time it was stolen. Sections 15.05(2) and 15.15(1) of the Penal Law.

Section 496 of the Penal Code (Chapter 676 of the Laws of 1881) defined the crime of burglary as follows:

"a person who with intent to commit some crime therein, breaks and enters, in the night time, the dwelling house of another, in which there is at the time a human being 1. Being armed with a dangerous weapon; or 2. Arming himself therein with such a weapon."

This definition of burglary in the first degree was taken over as Section 402 of the Penal Law, Chapter 88 of the Laws of 1909 and remained unchanged until the Penal Law was revised in 1967. In People v. Roden, 21 N.Y.2d 810, 288 N.Y.S.2d 638, 235 N.E.2d 776, the Court of Appeals held that an unloaded firearm could be a "dangerous weapon" in the case of a robbery.

In revising the crime of burglary in the first degree (Section 140.30) the Legislature made significant changes.

"A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling at night with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom he or another participant in the crime:

1. Is armed with explosives or a deadly weapon; or . . .

3. Uses or threatens the immediate use of a dangerous instrument; or

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . ."

Since there was no person present in this case when the firearm was stolen, the sole question involved is whether the same was a "deadly weapon."

Section 10.00, subdivision 12 of the Penal Law defines a "deadly weapon" as "any Loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switch blade knife, gravity knife, dagger, billy, blackjack, or metal knuckles."

The questions raised on this motion are:

1. When does a person "arm" himself with a deadly weapon?

2. Was the weapon stolen here a "deadly" weapon?

3. Does the prosecution have the burden of proving that a defendant has knowledge that the weapon is loaded and thus deadly in character?

An examination of the Grand Jury testimony discloses that the gun was never recovered and that the evidence consisted of a written statement made by the defendant to the law enforcement official investigating the burglary. Assuming the voluntary nature of the statement, it indicates that the alleged burglary was committed in company with a juvenile "D" and that,

"We were in the bedroom looking through the bedroom and D___ opened up a brief case or suitcase and she found a black triangular case and she opened it up and found that there was a gun wrapped up in this case. There was bullets in this case also. So D___ closed the case up and I found a paper bag and we put the black case carrying the gun and bullets inside the paper bag."

The defendant then stated that the bag with the case containing the weapon was taken to an apartment where a person named Randy took the weapon.

A person "arms" himself when he is furnished or equipped with weapons of offense or defense. The word "armed" applies to any situation where a gun or deadly weapon is within the immediate control of a person and is available for his use.

California has a statute defining burglary in the first degree in terms similar to our statute and several cases have determined when a person "arms" himself. A burglar who steals an unloaded revolver as part of his loot does not "arm himself with a deadly weapon."

People v. Ford, 60 Cal.App.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892, cert. denied 377 U.S. 940, 84 S.Ct. 1342, 12 L.Ed.2d 303; People v. Black, 73 Cal.App. 13, 29, 238 P. 374; People v. Harris, 266 Cal.App.2d 426, 72 Cal.Rptr. 423.

However, where a burglar takes a revolver in a house broken into and loads it with bullets also found there, this is equivalent to "arming himself" within the meaning of California Penal Code, Section 460. People v. Tittle, 258 Cal.App.2d 518, 65 Cal.Rptr. 576.

Being "armed" with a deadly weapon is an element of a crime which can rarely be established by the prosecution unless it is fired or immediately recovered. People v. Archie, 85 Misc.2d 243, 249, 380 N.Y.S.2d 555, 562.

Here, the evidence before the Grand Jury was insufficient to justify a finding that the firearm was "loaded" as required by the definition of a deadly weapon. The additional affidavit of the owner was inadmissible as evidence since it did not conform to the requirements of Section 190.30, Subdivision 3, CPL.

Where the prosecution...