People v. Webb

• Decision Date: 05 June 1974
• Citation: 356 N.Y.S.2d 494,78 Misc.2d 253
• Parties: The PEOPLE of the State of New York v. Leander WEBB, Defendant.
• Court: New York City Court

Page 494

356 N.Y.S.2d 494

78 Misc.2d 253

The PEOPLE of the State of New York v. Leander WEBB, Defendant.

Criminal Court of the City of New York, New York County, Part AP9.

June 5, 1974.

Richard H. Kuh, Dist. Atty., New York County (John B. Sprung, Asst. Dist. Atty., of counsel), for the People.

George Locker, Alice Schlesinger, New York City, for defendant.

DANIEL HOFFMAN, Judge:

The defendant is charged with the possession of an imitation pistol in violation of the Administrative Code, section 436--5.0(g). The only issue raised upon this motion to dismiss the information is the constitutionality of this section.

The defendant contends that section 436--5.0(g) is unconstitutional on the grounds: (1) the Penal Law, as set forth in Article 265, preempts any local legislation in regard to imitation pistols; (2) it is in conflict with Penal Law section 265.05(9); and (3) it was an arbitrary and unjustified exercise of municipal police powers. Penal Law, section 265.05(9) provides:

'Any person who has in his possession any . . . imitation pistol . . . with intent to use the same unlawfully against another is guilty of a class A misdemeanor.'

Administrative Code, section 436--5.0(g) provides:

'It shall be unlawful for any person to . . . possess or use . . . any toy or imitation pistol or revolver which Substantially duplicates an actual pistol or revolver unless said imitation or toy pistol or revolver shall be colored in colors other than black, blue, sliver or aluminum, And further provided that the barrel of said toy or imitation pistol or revolver shall be closed with the same material of which the toy or imitation pistol or revolver is made for a distance of not less than one-half inch from the front end of said barrel . . ..' (emphasis added)

At the onset this court finds it necessary to formulate a definition of an 'imitation pistol,' as neither the Penal Law nor the Administrative Code sets forth a definition of the term. Under the Penal Law, an imitation pistol must be given its broadest definition, that is, any object which resembles an actual pistol in shape and/or function, since it is the illegal use and not the type of imitation pistol which is sought to be proscribed. The Administrative Code addresses itself to the possession of a certain type of imitation pistol--one which Substantially duplicates a real pistol and is colored black, blue, silver or aluminum and which does not have its barrel blocked. Thus, the Penal Law contemplates an imitation pistol in the reality of its use, while the Administrative Code contemplates an imitation pistol in the reality of its appearance. Under both statutes, an imitation pistol is not an actual firearm which can discharge a projectile or acts by force of gunpowder (People v. Charles, 9 Misc.2d 181, 169 N.Y.S.2d 757) nor is it an inoperable pistol which can be readily made operable (In re Don R.B., 66 Misc.2d 279, 320 N.Y.S.2d 813).

Before beginning our consideration of this case, this court finds it is useful and instructive to examine the state of the law in regard to imitation pistols under the former Penal Law and the cases decided thereunder. Former Penal Law, section 1897(1) made it illegal for a person to attempt to Use an imitation pistol against another and also to Possess an imitation pistol With intent to use it unlawfully against another. Furthermore, former section 1898 provided that possession of an imitation pistol was presumptive evidence of intent to use it in violation of section 1897(1).

In People v. Del Gardo, 1 Misc.2d 821, 146 N.Y.S.2d 350 (Magistrate's Court, 1955) the defendant was arrested for the possession of toy cap pistols in violation of the Administrative Code, section 436--5.0(g). The court found that since Penal Law, section 1894--(a) (presently Penal Law, section 700.00(1)) specifically permitted the use and sale of toy cap pistols 'at all times,' section 436--5.0(g) 'interdict(ed) without exception that which is permitted by state law' and is invalid (at p. 825, 146 N.Y.S.2d at p. 355). The court further concluded that the inclusion of imitation pistols in section 1897 was an intention by the state to legislate 'in all respects relative to the possession and use of imitation pistols' so as to preclude any local legislation in that field (at p. 827, 146 N.Y.S.2d at p. 356).

Some three months later the court in People v. Klufus, 1 Misc.2d 828, 149 N.Y.S.2d 821 (Magistrate's Court, 1956), came to the opposite conclusion. Unlike the toy pistols in Del Gardo, Klufus involved a handmade wooden pistol, painted black and in size resembling a .45 calibre automatic, fitted with a metal barrel. The court determined the type of imitation pistols contemplated by the Penal Law were such in which powder of some form or another is used and that the state had done nothing in the field of 'toy or imitation pistol(s) or revolver(s) which substantially duplicates an actual pistol or revolver as used in the ordinance' (at p. 833, 149 N.Y.S.2d at p. 828), and thus there was no state preemption in that field. It further concluded that section 436--5.0(g) was merely a regulative and not a prohibitory act seeking to control what the facts and circumstances of the conditions in New York City have shown to be the too often use of authentic looking imitation pistols in the perpetration of various crimes. This being the stated purpose of section 436--5.0(g), the legislation was in the proper scope of the local police power and the act was constitutional. Klufus was unanimously affirmed without opinion (2 A.D.2d 958, 157 N.Y.S.2d 903 (1st Dept. 1956) and the predicate for affirmance in People v. Weinstein, 5 A.D.2d 698, 169 N.Y.S.2d 469, affd. no opinion, in 4 N.Y.2d 986, 177 N.Y.S.2d 506, 152 N.E.2d 529 (1958)).

There is a strong presumption of the constitutionality of any legislative enactment, and the burden of demonstrating unconstitutionality rests upon the one asserting it (Matter of Spielvogel v. Ford, 1 N.Y.2d 558, 154 N.Y.S.2d 889, 136 N.E.2d 856). A court of first instance should not seek to set aside a legislative enactment unless the statute is unreasonable, arbitrary and the conclusion of unconstitutionality is inescapable (People v. Salerno, 17 Misc.2d 535, 185 N.Y.S.2d 169; Nat. Psychological Ass'n v. Univ. of State of N.Y., 18 Misc.2d 722, 188 N.Y.S.2d 151, affd. 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649; McKinney's Statutes, § 150(a)).

The Constitution of the State of New York (Art. IX § 2(c)(i) & (ii) (10)), the Municipal Home Rule Law (Art. II § 10(1)(i) & (ii), par. a (11)) and the New York City Charter (§ 27(a))--all provide that our local government shall have the power to adopt and amend local laws, not inconsistent with the Constitution or any general law of the state, which relate to its property, affairs, or government, for the preservation of the public health, comfort, welfare and safety of its inhabitants.

The mere fact that a local law may deal with some of the same matters touched upon by state law does not render the local law invalid (People v. Lewis, 295 N.Y. 42, 64 N.E.2d 702). It is only when the state has evidenced a desire or design to occupy an entire field to the exclusion of local law that the city is powerless to act (Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 234 N.Y.S.2d 862, affd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623).

This court concludes that Penal Law, article 265 does not so extensively treat the subject of imitation pistols as to evidence an intent or desire by the state legislature that it be the sole and exclusive legislation in this area. Penal Law, article 265 is aimed at the control and regulation of firearms and other dangerous weapons. As such, imitation pistols are included in the statute only when they are possessed with an intent to be used unlawfully against another person As a weapon. As to any other use or possession, the statute is silent.

Furthermore, unlike former Penal Law, section 1828, there is no presumption of intent to use unlawfully against another which arises from the possession of an imitation pistol. Thus, our present statute regulates imitation pistols even so than the former law, which was held not to preempt the field in Klufus and Weinstein. The failure to define an imitation pistol is further evidence that the Penal Law did not intend to be the sole legislative word on the subject. ^*

The defendant further argues that by prohibiting possession of an imitation pistol only in context of section 265.05(g) the Penal Law impliedly permits possession in all other circumstances. Such an argument is much too broad. If this were the...