Opinion
February 16, 1961
Heffner, Block Block for defendant.
John M. Braisted, Jr., District Attorney ( Thomas R. Sullivan of counsel), for plaintiff.
Defendant was convicted of the crime of assault in the second degree in having assaulted one Carrier by aiming and discharging at him a loaded rifle, the same being a weapon, instrument or thing likely to produce grievous bodily harm. He was sentenced to imprisonment in State prison at Sing Sing for a term not less than one year nor more than two years. Notice of appeal has been duly served and filed.
Defendant now applies for a certificate of reasonable doubt and for an order admitting him to bail pending the determination of his appeal from the judgment of conviction.
A preliminary question presented on this application is whether the defendant may be admitted to bail in the event the application is granted. Defendant requests that, should the court determine that he may not be admitted to bail, the application is to be deemed withdrawn. Although the entire record has been reviewed, this memorandum is confined to the question stated.
Section 555 of the Code of Criminal Procedure provides, in part, that a defendant who has appealed from a judgment of conviction may not be admitted to bail "(b) if the defendant is convicted of a felony committed while armed with a weapon as provided in section nineteen hundred and forty-four of the penal law".
If a loaded rifle is a weapon specified in sections 1896, 1897 or 1897-a of the Penal Law (the sections to which reference is made in section 1944 thereof), the defendant may not be admitted to bail.
Among the weapons specified in section 1896 of the Penal Law are "any gun, revolver, pistol or other firearm" (emphasis supplied). The words "gun" or "other firearm" are specific and, in ordinary usage and by commonly accepted definition include the word "rifle" (see Webster's New Int. Dictionary [2d ed.], where "gun" is defined as "Any portable firearm except a pistol or revolver, such as a rifle, shotgun, carbine, etc").
The conclusion here reached accords with common sense and accords, too, with the requirement of section 21 of the Penal Law which provides that penal statutes must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.
The defendant may not be admitted to bail. The application is, therefore, deemed withdrawn.