People v. Wilson

• Decision Date: 31 December 1998
• Citation: 252 A.D.2d 241,684 N.Y.S.2d 718
• Parties: , 1998 N.Y. Slip Op. 12,003 PEOPLE of the State of New York, Respondent, v. Claude J. WILSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 718

684 N.Y.S.2d 718

252 A.D.2d 241, 1998 N.Y. Slip Op. 12,003

PEOPLE of the State of New York, Respondent, v. Claude J. WILSON, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 31, 1998.

Daniel E. Seaman by Joseph Townsend, Public Defender's Office, Lockport, for Appellant.

Matthew J. Murphy, III by Thomas Brandt, District Attorney's Office, Lockport, for Respondent.

Present: DENMAN, P.J., HAYES, BALIO, BOEHM and FALLON, JJ.

DENMAN, P.J.:

Defendant's challenge to the jury instructions requires us to decide whether an unloaded shotgun may nonetheless be deemed "loaded" within Penal Law § 10.00(12), merely because the defendant in possession of the shotgun is simultaneously in possession of shells. If we answer that question in the negative, we must determine whether an unloaded shotgun is a "deadly weapon" within the meaning of Penal Law § 10.00(12), and whether, under the circumstances presented, it is a "dangerous instrument" within the meaning of Penal Law § 10.00(13). We answer each of those questions in the negative and thus conclude that defendant's conviction of burglary in the first degree (Penal Law § 140.30[1] ) and attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[2], [3] ) should be set aside.

I.

Defendant was indicted for, among other crimes, burglary in the first degree (Penal Law § 140.30[1] [defendant or another participant was armed with a deadly weapon] and [3] [defendant or another participant used or threatened the immediate use of a dangerous instrument] ); attempted robbery in the first degree (Penal Law § 160.15[2] [deadly weapon] and [3] [dangerous instrument] ); and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The burglary and attempted robbery counts each alleged that defendant or another participant possessed a Marlin 12-gauge shotgun; one burglary and one attempted robbery count specifically alleged that the shotgun was "loaded".

The indictment arose out of an incident that occurred at an apartment house in Niagara Falls. Two accomplices testified that they entered the building with defendant in an attempt to rob a resident. The accomplices testified that defendant carried a Marlin 12-gauge shotgun in a black plastic bag and carried shells for the gun in his pocket. The intended victim testified that masked men in the hallway of the building tried to force open her apartment door. She did not see a gun.

Responding to the scene, police officers observed defendant and the accomplices at the bottom of the stairs outside the building. Defendant was carrying an object. The suspects huddled and then dispersed, at which time the object was no longer visible. The suspects were quickly taken into custody. Police seized six 12-gauge shotgun shells and drugs from defendant's pockets.

After arresting defendant, police searched for the object that he had been carrying. Wedged between the staircase and the building, where the men had huddled, police found a black plastic bag containing an unloaded Marlin 12-gauge shotgun. The shotgun was later tested and found capable of firing the shells seized from defendant's person.

At the close of proof, defendant moved to dismiss one burglary count and one attempted robbery count on the ground that the unloaded shotgun was not a "deadly weapon". Defendant also moved to dismiss the other burglary count and other attempted robbery count on the ground that the unloaded shotgun was not, under the circumstances, a "dangerous instrument". County Court denied the motions, although the People later consented to dismissal of the charge of first degree burglary under Penal Law § 140.30(3) (dangerous instrument).

In charging the jury on first degree burglary under Penal Law § 140.30(1) and first degree attempted robbery under Penal Law § 160.15(2), the court read the definition of "deadly weapon" set forth in Penal Law § 10.00(12), i.e., "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged." In addition, the court read the more expansive definition of "loaded firearm" set forth in Penal Law § 265.00(15), i.e., "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm." The court invited the jury to use that definition of "loaded firearm" in determining whether defendant possessed a "deadly weapon", i.e., a "loaded weapon", as defined by Penal Law § 10.00(12). Defendant objected to that instruction.

Defendant was found guilty of first degree burglary under Penal Law § 140.30(1) and attempted first degree robbery under Penal Law § 160.15(2) (possession of a "deadly", i.e., "loaded," weapon) and attempted first degree robbery under Penal Law § 160.15(3) (possession of a "dangerous instrument"). Defendant additionally was found guilty of criminal possession of a controlled substance in the seventh degree. Defendant was sentenced as a second felony offender to concurrent terms of incarceration of 12 1/2 to 25 years for first degree burglary, 7 1/2 to 15 years for attempted first degree robbery, and one year for criminal possession of a controlled substance.

II.

The court erred in charging the jury on the "deadly weapon" element of first degree burglary and attempted first degree robbery (see, Penal Law § 140.30[1]; § 160.15[2] ). The court improperly borrowed the definition of "loaded firearm" from Penal Law § 265.00(15) and engrafted it onto the Penal Law § 10.00(12) definition of "deadly weapon". In so doing, the court rewrote the Penal Law, misdefined what constitutes a "loaded weapon" (see, Penal Law § 10.00[12] ) and erroneously allowed the jury to find that the shotgun was "loaded", i.e., "deadly" (Penal Law § 10.00[12] ), even if not actually "loaded" with live ammunition, so long as defendant simultaneously possessed ammunition for the weapon.

Defendant was not charged with possessing a "loaded firearm" as defined by Penal Law § 265.00(3) and (15), nor was he charged with violating any provision of Penal Law article 265. The shotgun defendant possessed was not under the specified length, and thus was not a "firearm" within the meaning of that article (see, Penal Law § 265.00[3] ). The charges against defendant required proof that defendant or another participant possessed a "deadly weapon", not a "loaded firearm" (see, Penal Law § 10.00[12]; § 140.30[1]; § 160.15[2] ). "Deadly weapon" is defined by Penal Law § 10.00(12) for the purpose of delineating various crimes and affirmative defenses set forth throughout the Penal Law (see, e.g., Penal Law § 120.00[3]; § 120.05[2], [4]; § 120.10[1]; §§ 120.11, 120.14[1]; § 125.25[3][b]; § 140.17[1]; § 140.25[1][a]; § 215.51[b][i]; § 265.01[5]; § 265.08[1]; § 265.09[1][a] ). In contrast, the definition of "loaded firearm" in Penal Law § 265.00(15) has a much more limited function, pertaining only to crimes contained in Penal Law article 265 (see, Penal Law § 265.02[4]; §§ 265.03, 265.35[2]; see also, Penal Law § 140.17[2], which, although not expressly incorporating Penal Law § 265.00[15], conveys a similarly enlarged definition of when a firearm is "loaded" for the limited purpose of determining criminal liability under that subsection). The structure of the Penal Law thus confirms that the concepts of "deadly weapon" and "loaded firearm" do not overlap and were intended to serve discrete functions (see, People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081, in which the Court charted the distinction between those elements).

The court's charge improperly enlarged the definition of "deadly weapon". Under Penal Law § 10.00(12), "deadly weapon" includes a gun, provided that it is a "loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged". Courts that have addressed that section have implied that, in order to be a "deadly weapon", a gun must actually be "loaded", as that term is commonly understood (see, People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823, modfg. 105 A.D.2d 863, 482 N.Y.S.2d 364; People v. Hilton, 187 A.D.2d 608, 609, 590 N.Y.S.2d 106, lv. denied 81 N.Y.2d 887, 597 N.Y.S.2d 948, 613 N.E.2d 980; People v. Lind, 173 A.D.2d 179, 183-184, 569 N.Y.S.2d 416, affd. in part, revd. in part on other grounds 79 N.Y.2d 722, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563; People v. Johnson, 169 A.D.2d 498, 500, 564 N.Y.S.2d 366, lv. denied 77 N.Y.2d 962, 570 N.Y.S.2d 496, 573 N.E.2d 584; People v. Robertson, 162 A.D.2d 953, 954, 557 N.Y.S.2d 182, lv. denied 76 N.Y.2d 863, 560 N.Y.S.2d 1003, 561 N.E.2d 903; People v. Kilpatrick, 143 A.D.2d 1, 531 N.Y.S.2d 262, criticized on other grounds in People v. Gray, 86 N.Y.2d 10, 19-20, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Shaffer, 130 A.D.2d 949, 950, 516 N.Y.S.2d 373, lv. denied 70 N.Y.2d 717, 519 N.Y.S.2d 1053, 513 N.E.2d 1321; People v. Amato, 99 A.D.2d 495, 496, 470 N.Y.S.2d 441; People v. Elfe, 37 A.D.2d 208, 211, 323 N.Y.S.2d 114; People v. Howard, 37 A.D.2d 178, 180, 323 N.Y.S.2d 119; People v. Madehere, 149 Misc.2d 564, 567, 565 N.Y.S.2d 984; People v. Tracey A., 97 Misc.2d 1053, 1055-1056, 413 N.Y.S.2d 92; but see, People v. Lay, 39 A.D.2d 904, 905, 334 N.Y.S.2d 398).

No other construction is possible given the statute's requirement that the gun be one "from which a shot *** may be discharged" (Penal Law § 10.00[12] ). Only if a gun is actually "loaded" is it one "from which a shot *** may be discharged" (Penal Law § 10.00[12] ). We thus disagree with the People's argument that the Legislature meant "may be discharged" in the hypothetical sense, rather than in the sense of the gun's immediate capability. Self-evidently, the concept of "loaded" in Penal Law § 10.00(...