Opinion
March 20, 2000.
Legal Aid Society, New York City (Victor M. Brown of counsel), for defendant.
Robert E. Morgenthau, District Attorney of New York County (Yujin Hong of counsel), for plaintiff.
DECISION
Defendant was charged with violating: Penal Law § 265.01 (2) (Criminal Possession of a Weapon in the Fourth Degree); Penal Law § 120.14 (1) (Menacing in the Second Degree); and, Penal Law § 120.15 (Menacing in the Third Degree). Defendant moves to dismiss this case for facial insufficiency pursuant to CPL §§ 100.15 Crim. Proc. and 100.40 Crim. Proc. and also moves to suppress defendants' statements and physical evidence. Additionally, defendant moves to dismiss the case pursuant to CPL § 30.30, alleging that the complaint has not been properly converted to an information within 90 days of her arrest.
This case is one of first impression. The defendant is accused of pointing a mace container at the complaining witness placing him in fear of physical injury. The two-fold inquiry before the court is (1) whether a cannister of mace is considered a deadly weapon or firearm and (2) whether it must be tested as operable at the time of the arrest to make out a prima facie case for the violation of Penal Law § 265.01 (Criminal Possession of a Weapon in the Fourth Degree). The Court answers both questions in the affirmative and the motion to dismiss for facial insufficiency is granted.
Facial Sufficiency
Defendant threatened the complainant by pointing a container of mace at his face placing him in fear of imminent injury. For this, he is charged with the afore-mentioned crimes. The Courts have addressed the issue of operability of a weapon with respect to: handguns (People v. Longshore, infra); pellet guns (People v. Laureno, infra); and homemade guns (In re B., infra). A can of mace is likewise considered a weapon and for a PL § 265.01 Penal charge to be facially sufficient the mace container's operability must be corroborated.
In People v. Longshore, 86 N.Y.2d 851 (1995), the Court of Appeals was presented with the question of whether the evidence proved the weapon in question was operable. The People conceded that they failed to establish operability but contended that the statute did not require them to prove operability. It is now accepted that to establish criminal possession of a handgun, the People must prove that the weapon is operable. Furthermore, it appears that the courts have assumed the same rule applies to criminal possession of rifles and shotguns under PL § 265.01 Penal. Requiring proof of operability for the two offenses is reasonable because there is no functional difference between a handgun and a rifle or shotgun, and no reason to treat each differently in this respect for purposes of the criminal possession statutes. Both are capable of inflicting serious injury or death only if operable and both are appropriately regulated under those circumstances.
People v. Grillo, 15 A.D.2d 502 (Second Dept.), aff'd 11 N.Y.2d 841 (1961); People v. Lugo, 161 A.D.2d 122 (First Dept. 1990);People v. Actie, 99 A.D.2d 815 (Second Dept. 1984); People v. Donaldson, 49 A.D.2d 1004 (Fourth Dept. 1975); and see, People v. Saunders, 85 N.Y.2d 339, 342 (1995); People v. Cavines, 70 N.Y.2d 882, 883 (1987).
See, Matter of Jermaine M., 188 A.D.2d 336, 337 (First Dept. 1992); People v. Padron, 118 A.D.2d 599 (Second Dept. 1986): People ex rel. Walker v. Hammock, 78 A.D.2d 369 (Fourth Dept. 1981); See also, People v. Walston, 147 Misc.2d 679 (Crim.Ct., Kings Co. 1990).
In the instant case, the People have also conceded that they failed to establish operability of the weapon. Furthermore since a cannister of mace, like a handgun, is capable of inflicting serious injury when operable, the mace is considered a "deadly or dangerous instrument" under PL § 265.01 Penal and should thus be covered by the statute.
People's Affirmation in Response at page 1, paragraph 3.
The First Department has ruled in People v. Robles, 251 A.D.2d 20 (1998), that absent evidence of operability of a weapon, fourth degree criminal weapons possession charge fails. Although not preserved for appellate review, in the interest of justice, the court concluded that since there was no evidence of the operability of any of the weapons involved in the incident, a charge of PL § 265.01 Penal could not survive.
In People v. Aponte, 249 A.D.2d 553 (2d Dept. 1998), the court focused on operability of the firearm as being the essential element of Criminal Possession of a Weapon in the Second Degree. The lower court failed to charge the jury on the element of operability. Accordingly, the defendant's conviction for Criminal Possession of a Weapon in the Second Degree was vacated and that count of the indictment dismissed. See People v. Jones, 233 A.D.2d 342 (Second Dept. 1996); People v. Hechavarria, 158 A.D.2d 423 (First Dept. 1990); People v. Alvarez, 96 A.D.2d 864 (Second Dept. 1983).
A pellet gun must likewise be proven operable. People v. Laureno, 163 Misc.2d 873 (Crim.Ct., Kings Co. 1995). Defendant was charged with inter alia PL § 265.01 Penal (2) and moved to dismiss the information alleging that the weapons charge has not been properly corroborated by a ballistics report within the time constraints of CPL 30.30, and in the interest of justice. On August 29, 1994, Police Officer Quinn, in response to a radio run, arrived at the scene of the crime and was met by the building superintendent who escorted him to an apartment where a dispute was allegedly in progress. Upon a request to open the door to the apartment, the defendant waved a pellet gun in his hand. Defendant was then arrested, and the pellet gun was recovered.
In Laureno, supra, the defendant sought dismissal of the information alleging that no ballistics report was ever submitted by the People to prove that the pellet gun was operable. Defendant argued that since 90 days had elapsed since the filing of the complaint against him, the complaint was never converted into an information and is, therefore, facially insufficient. See People v. Harvin, 126 Misc.2d 775 (Crim.Ct., Bronx County 1984).
The People argued that a pellet gun is an imitation pistol and that proof of operability is not required. The People relied on People v. Williams, 113 Misc.2d 595 (Crim.Ct., N.Y. County 1982). In Williams, supra, the court held that an altered, yet inoperable, starter pistol was an imitation pistol. However, the Court held that the People's reliance on Williams was misplaced. A pellet gun, unlike an imitation pistol, is a dangerous weapon which can cause serious physical injury to an individual, whereas an imitation pistol is not so categorized. Since a pellet gun is capable of causing serious injury or harm to another, it is clearly a dangerous or deadly weapon. Furthermore, the fact that the defendant had the pellet gun drawn at the police officer is sufficient to establish the intent element of the statute.
Since the court found that a pellet gun is a dangerous instrument capable of causing serious physical injury, there must be some evidence to prove that it is operable. The evidence required is a ballistics report. See, People v. Adorno, 128 Misc.2d 389 (Crim.Ct., Bronx County 1984). So accordingly, in Laureno, the court found that the portion of the information alleging Criminal Possession of a Weapon in the Fourth Degree must be dismissed for facial insufficiency because no ballistics report was filed proving the pellet gun was operable.
Lastly, in In re B., 66 Misc.2d 279 (Family Ct., Kings Co. 1971) the court held that a homemade gun unable to discharge a bullet was neither a weapon nor firearm under PL § 265.01 Penal. If the gun had the ability to discharge and fire it would have been considered a firearm under the statute.
A cannister of mace has the potential to do serious damage to a person. If the mace cannister is operable, it is a dangerous instrument. The two menacing charges: PL §§ 120.14 Penal (1); and 120.15 Penal must also be dismissed. With the failure of the People to present a prima facie case Criminal Possession of a Weapon in the Fourth Degree the menacing charges must also be dismissed.
CPL § 30.30The CPL § 30.30 issue is now moot because the case is dismissed on its merits, and it will not be addressed by this court.
Conclusion
Defendant's motion to dismiss all charges for facial insufficiency is granted.