Opinion
October 15, 1980
Louis Reese for defendant.
John J. Santucci, District Attorney (Louis Meehan of counsel), for plaintiff.
After hearing, this case is held for the action of the Grand Jury. The sawed-off shotgun herein was discovered by the police officer in the back pocket of the defendant covered by his outer clothes. Although the testimony indicated the sawed-off shotgun is approximately 22 inches overall in length, it is a concealable weapon by virtue of the fact that it was cut down to a size where it could be concealed and further, by the indisputable fact that it was concealed on the person of the defendant.
The defendant cites three cases, People v Palermo ( 36 A.D.2d 565), People v Roberts ( 73 Misc.2d 500) and Matter of Peabody ( 86 Misc.2d 520), all of which are concerned with sawed-off shotguns varying in over-all length between approximately 18 inches to approximately 23 inches. The courts in these cases indicated that such weapons by virtue of their size were not concealable firearms as contemplated by the statute.
In the Palermo case, the sawed-off shotgun was 18 inches overall in length and was confiscated from the trunk of defendant's car. In the Roberts and Peabody cases the sawed-off shotguns were 22 1/2 and 23 1/2 inches in over-all length and were confiscated from the homes of the respective defendants. The instant case is distinguishable from those cited in that the defendant herein had actually and factually concealed the weapon on his person. Thus to find that this sawed-off shotgun was not of a size capable of concealment is ludicrous and contrary to fact.
An interesting grammatical reading of subdivision 3 of section 265.00 Penal of the Penal Law defining a firearm thusly, "`Firearm' means any pistol, revolver, sawed-off shotgun or other firearm of a size which may be concealed upon the person, except an antique firearm", could be concluded to mean that a firearm is a pistol, a revolver, a sawed-off shotgun, or any other firearm of a size that may be concealable upon the person, thus conceding that the three named weapons are per se firearms.
In any event, this court finds that the sawed-off shotgun herein is a firearm capable of concealment and this case is held for the action of the Grand Jury.