Opinion
No. D–26104/12.
2013-04-5
In the Matter of TILAR M., A Person Alleged to be a Juvenile Delinquent, Respondent.
Michael A. Cardozo, Corporation Counsel (Danielle M. Boccio of counsel), New York. City, for the Presentment Agency. The Legal Aid Society (Tamara Steckler and Lisa E. Tuntigian of counsel), New York City, attorney for respondent.
Michael A. Cardozo, Corporation Counsel (Danielle M. Boccio of counsel), New York. City, for the Presentment Agency. The Legal Aid Society (Tamara Steckler and Lisa E. Tuntigian of counsel), New York City, attorney for respondent.
JOHN M. HUNT, J.
By petition filed pursuant to Family Court Act § 310.1 on December 12, 2012 the respondent is alleged to have committed an act in violation of New York City Administrative Code § 10–131(g), which is an unclassified misdemeanor (N.Y.C Administrative Code § 10–131[g] [4]; Penal Law § 55.10 [2][c] ).
This case was transferred to this Court for purposes of a fact-finding hearing and during a conference with counsel, the Court questioned whether the juvenile delinquency petition was jurisdictionally sufficient ( see,Fam. Ct. Act § 311.2). The parties were invited to provide the Court with memoranda of law relating to the issue, and while the Court was considering the parties' submissions the respondent absconded from a non-secure “Close to Home” facility with which he was placed on an unrelated juvenile delinquency proceeding. The Court held the issue in abeyance during the period of respondent's voluntary absence, and he was returned to Court[Slip Op. 2]on April 3, 2013, after a warrant had been issued by the Administration for Children's Services.
The juvenile delinquency petition alleges that on December 27, 2012 in the County of Queens, the respondent “sold or offered for sale, possessed or used or attempted to use or give away, a toy or imitation firearm which substantially duplicated or could reasonably be perceived to be an actual firearm.” Two supporting depositions and a Laboratory Report prepared by the New York City Police Department Laboratory's Firearms Analysis Section are appended to the petition.
The supporting deposition by New York City Police Detective Mike Failla, who is assigned to the 113th Precinct in Queens County, states in pertinent part, that at 1:00 P.M. on December 27, 2012 in the “[v]icinity of 115–34 199th Street”,
I observed the respondent to be holding what appeared to me to be a firearm, based on my training and experience as a New York City Police Officer. The respondent dropped what appeared to be a firearm to the ground and I recovered it from the ground and I later placed it on the hood of a police vehicle and I observed Police Officer Wagner recover it from the hood.
The supporting deposition by New York City Police Officer Adam Wagner, who is also assigned to the 113th Precinct in Queens County, states in pertinent part, that at 1:00 P.M. on December 27, 2012, in the “[v]icinity of 115–34 199th Street
in the presence of Detective Failla, I recovered from a police vehicle what appeared to me to be a firearm, based on my training and experience as a New York City Police Officer. The firearm was black in color and non transparent. The barrel of it was open and it resembled a real firearm. It did not have a mark or brand by which the manufacturer could be readily identified. It did not have a laser pointer attached to it. Upon closer inspection, I observed that it appeared to be powered by spring and it looked like a Glock [Model] 26. I subsequently vouchered the above-mentioned property ... [r]espondent admitted to me that he is fourteen years old and that his date of birth is October 30, 1998. His appearance seemed to be consistent with his age of fourteen.
The Laboratory Report prepared by New York City Police Detective Dominick Cappiello, who is assigned to the Police Department Laboratory's Firearms Analysis Section, states that on December 28, 2012 he received the items recovered from the respondent and vouchered by Police Officer Wagner, and that upon his analysis and testing, the items are an “Air Pistol, 6MM BB Caliber, unknown make, Glock Type, NYPD Lead Serial Number 565264”, and a 6MM BB magazine having a capacity of 15 BBs. Additionally, Detective Cappiello's report states that the 6 millimeter BB gun was “inoperable, due to broken slide assembly” and that “the above is not capable of firing a live cartridge and therefore is not a firearm.”
Following his first appearance before this Court, the issue of whether the petition was jurisdictionally sufficient or whether dismissal of the petition was required was raised and addressed by both the Presentment Agency and the attorney for the respondent. While the Presentment Agency maintains that its petition is jurisdictionally sufficient, respondent contends that the petition should be dismissed because the non-hearsay factual allegations of the petition and the three supporting depositions do not establish a prima facie case of a violation of Administrative Code § 10–131(g), the sole crime charged in the petition.
Specifically, respondent argues that the item allegedly recovered from his person by the police was an “inoperable BB gun” and not an imitation pistol, the possession of which is prohibited by Administrative Code § 10–131(g). While the Presentment Agency does not contest the assertion that the item seized by the police is an inoperable BB gun, it argues that the possession of an inoperable BB gun violates the city ordinance prohibiting the possession of imitation pistols.
Having considered the arguments of counsel and written memoranda submitted upon this issue, the Court agrees with the Presentment Agency, and finds that this juvenile delinquency petition is facially sufficient with respect to its sole charge.
The respondent is charged with the possession of an imitation pistol, in violation of NYC Administrative Code § 10–131(g). That portion of the Administrative Code provides, in relevant portion, that:
(g) (1) It shall be unlawful for any person to sell or offer for sell, possess or use or attempt to use or give away, any toy or imitation firearm which substantially duplicates or can reasonably be perceived to be an actual firearm unless: (a) the entire exterior surface of such toy or imitation firearm is colored white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink or bright purple, either singly or as the predominant color in combination with other colors in any pattern; or
So in original.
(b) such toy or imitation firearm is constructed entirely or transparent or translucent materials which permits unmistakable observation of the imitation or toy firearm's complete contents; and
(c) the barrel of such toy or imitation firearm, other than the barrel of any such toy or imitation firearm that is a water gun, is closed with the same material of which the toy or imitation firearm is made for a distance of not less than one-half inch from the front end of such barrel, and;
(d) such toy or imitation firearm has legibly stamped thereon, the name of the manufacturer or some trade name, mark or brand by which the manufacturer can be readily identified; and
(e) such toy or imitation firearm does not have attached thereto a laser pointer, as defined in paragraph one of subdivision a of section 10–134.2 of this code.
The supporting depositions of the police detectives and the police officer state that the BB gun recovered from the respondent substantially duplicated and appeared to be an actual firearm, specifically a Glock Model 26 pistol. While an actual pistol or revolver which is inoperable does not constitute a toy or imitation pistol in violation of Administrative Code § 10–131(b) or (g) (Matter of Michael R., 61 N.Y.2d 316, 320 [1984] ), it does not follow that an inoperable air pistol cannot constitute an imitation firearm, as the ordinance is directed to the appearance of the item as an actual firearm rather than its functionality ( Michael R. at 320 [starter's pistol]; Matter of Kareem McL., 276 A.D.2d 632, 633 [2000] [toy gun]; Matter of Timothy L., 29 AD3d 492, 493 [2006];People v. Johnson, 38 Misc.3d 1223[A]; 2013 N.Y. Slip Op 50242[U] ).
The possession of an inoperable firearm may instead be prosecuted as attempted criminal possession of a weapon under the Penal Law (People v. Saunders, 85 N.Y.2d 339, 343 [1995];Matter of David H., 255 A.D.2d 264 [1998] ).
This construction of Administrative Code § 10–131(g) is consistent with the expressed intention of the ordinance, which is to prohibit the sale, possession, or use of any toy or imitation firearm which appears to be an actual firearm as such devices “may readily be mistaken for real guns so as to be used or usable for nefarious purposes” (People v. Judiz, 38 N.Y.2d 529, 532 [1976] citing 1 Proceedings of Council of City of NY, p 75 [1955]; see also, City of New York v. Job–Lot Pushcart, 88 N.Y.2d 163, 164 [1996],cert denied sub nom. JA–RU v. City of New York, 519 U.S. 871 [1996] ).
The provisions of Administrative Code § 10–131(b) and § 10–131(g) are not mutually exclusive, and the possession of an operable air pistol, can simultaneously constitute a violation of both provisions of the ordinance where, for example, the air pistol is operable and it also “substantially duplicates or can reasonably be perceived to be an actual firearm” (Administrative Code § 10–131[g][1]; e.g., People v. Vargas, 29 Misc.3d 1209[A]; 2010 N.Y. Slip Op 51759[U] ). While the respondent is not charged with possession of an air pistol in this case as the BB gun recovered by the police is inoperable, he may still be charged with possession of an imitation pistol provided that the air pistol/BB gun “substantially duplicates or can reasonably be perceived to be an actual firearm” (N.Y.C Administrative Code § 10–131[g][1]; see, People v. Wilson, 283 A.D.2d 339, 340 [2001],lv denied97 N.Y.2d 644 [2001];Matter of Akeem B., 295 A.D.2d 175, 176 [2002];People v. Perez, 93 AD3d 1032, 1038, fn 2 [2012],lvs denied19 NY3d 1000 [2012];People v. Depaul, 101 AD3d 1735 [2012] ).
Had the BB gun been found to be operable, respondent could have been charged with a violation of Administrative Code § 10–131(b) as well as Penal Law § 265.05 which “specifically prohibits the possession of an air gun by a person under the age of 16” (Matter of Michael H., 38 AD3d 550, 551 [2007];see also, Matter of David H., 30 AD3d 285 [2006] ).
Therefore, upon review of the petition and the supporting depositions, and having considered the arguments of counsel, this Court finds that the petition contains non-hearsay allegations that establish, if true, every element of the crime charged and the respondent's commission thereof (Matter of Detrece H., 78 N.Y.2d 107, 109 [1991];Mater of Jahron S., 79 N.Y.2d 632, 635–636 [1992];Matter of Neftali D., 85 N.Y.2d 631, 635–636 [1995];Matter of Angel A., 92 N.Y.2d 430, 433 [1998];Matter of Divine D., 79 AD3d 940, 941 [2010];Matter of Michael Grudge M., 80 AD3d 614 [2011];Matter of Dhakeim C., 97 AD3d 675, 676–677 [2012] ).
It is therefore
ORDERED, that respondent's motion to dismiss the petition pursuant to Family Court Act § 315.1 is hereby denied.
This constitutes the decision and order of the Court.