Summary
In People v Palermo (36 A.D.2d 565), the Fourth Department held that a shotgun with a barrel of a little over 18 inches found in a car was not of a size which could be concealed on the person and reversed the defendant's conviction.
Summary of this case from People v. CortezOpinion
January 7, 1971
Appeal from the Monroe County Court.
Present — Goldman, P.J., Marsh, Witmer, Gabrielli and Henry, JJ.
Judgment unanimously reversed on the law and facts and indictment dismissed. Memorandum: Defendant, who was granted a certificate of reasonable doubt, appeals from a conviction of possession of a dangerous weapon (Penal Law, § 265.05, subd. 3) after trial without a jury. Insofar as pertinent, the statute provides that "3. Any person who has in his possession any firearm * * * is guilty of a class A misdemeanor". Subdivision 3 of section 265.00 Penal of the Penal Law defines firearm as "any pistol, revolver, sawed-off shotgun or other firearm of a size which may be concealed upon the person." Defendant, with counsel present, indicated that the police could search his automobile. The trunk of the vehicle was opened and the police found in clear view a shotgun together with other items such as golf clubs and other personal effects. The unloaded shotgun was in a broken position with the barrel running parallel to the stock and there was no proof offered of intent to use it unlawfully. The search was made because the police were looking for stolen jewelry and other types of guns. The barrel of the shotgun, excluding the stock, measured a little over 18 inches and the end of the gun had been altered. The sole issue turned upon proof beyond a reasonable doubt that the gun was "of a size which may be concealed upon the person." From our inspection of the gun we agree with defendant's contention that the People failed to prove a prima facie case and that there was no proof that a concealable weapon was involved. Subdivision 3 of section 265.05, made no change in statutory language from subdivision 3 of section 1897 of the old Penal Law except that words "class A" and "class D" have been added to indicate the type of crime involved. People v. Raso ( 9 Misc.2d 739) contains a definitive and comprehensive discussion of the issue of concealment of weapons, particularly with regards to rifles. We concur with Judge SOBEL'S statement in that case that (p. 740) "The gist of the statute is possession, but possession is prohibited only with respect to small arms `of a size which may be concealed on the person'. Obviously possession of rifles is not prohibited by this subdivision. * * * The gist of this crime is concealment." (Cf. People v. Briggs, 19 N.Y.2d 37, 41; People v. Adams, 28 A.D.2d 708.) We conclude that the legislative intent in respect of subdivision 3 of section 265.00 was directed to a type of weapon which could be concealed upon the person and not to the particular shotgun in this case. The conviction should be reversed and the indictment dismissed.