Opinion
January 9, 1958
Caroline Davidson for defendant.
Edward S. Silver, District Attorney ( Lewis D. Cohen of counsel), for plaintiff.
The defendant is charged in a fourcount information with a violation of section 1897 of the Penal Law, in that on February 15, 1957, with intent to use the same unlawfully against a person whose name is unknown to the District Attorney, he carried and possessed a .32-caliber pellet gun, which is described as a dangerous and deadly weapon.
The testimony in this case discloses that the defendant had in his possession a pistol capable of discharging pellets. The police officer described the weapon as "an air pistol". No testimony was adduced to indicate that the defendant intended to use the pistol unlawfully against another person.
Section 1897 of the Penal Law provides that "A person who attempts to use against another an imitation pistol, or who carries, or possesses, any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, bludgeon, or who, with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, imitation pistol, machine-gun, sawed off shot-gun, or any other dangerous or deadly instrument, or weapon," is guilty of a misdemeanor. (Emphasis supplied.)
The first subdivision of section 1897, which is quoted above, thus specifies three distinct crimes, to wit: (1) an attempt to use certain weapons therein described against another; (2) carrying or possessing any such instruments or weapons; and (3) carrying or possessing, with intent to use the same unlawfully against another, a dagger, dirk, dangerous knife, razor, stilletto, imitation pistol, machine gun, sawed-off shotgun, or "any other dangerous or deadly instrument, or weapon". ( People v. Grass, 79 Misc. 457; People v. Trudeau, 24 N.Y.S.2d 34, 35.) A pellet gun or air pistol is not specifically included among the prohibited weapons in that section.
It has been held that an air pistol is not a "firearm" within the meaning of section 1897 of the Penal Law. ( People v. Schmidt, 221 App. Div. 77.) A "firearm" is described as any weapon from which a shot is discharged by force of an explosive, or a weapon which acts by force of gunpowder. ( People v. Evergood, 74 N.Y.S.2d 12.)
We are therefore called upon to determine whether the defendant can be held on the charge of possessing a "dangerous or deadly instrument, or weapon" within the meaning of the statute. In People v. Admakiewicz ( 298 N.Y. 176, 180) it was held that as to the items falling under the general provisions of any other dangerous instrument or deadly weapon, "there must be proof of an intent to use the same unlawfully against another". While the pellet pistol in question might well be deemed a dangerous or deadly weapon, the People failed to present any proof of any intent by the defendant to use it unlawfully against another.
Accordingly, defendant's motion to dismiss the information should be granted and the defendant acquitted.
CAWSE, P.J. and TROY, J. concur.
Information dismissed, etc.