Citation Numbers: 144 Misc. 2d 350
Judges: Price
Filed Date: 7/24/1989
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
The defendant has made an application to this court to dismiss the indictment contending that the weapon he is
The People oppose this motion, contending that there is at least a question of fact as to whether or not the weapon is a firearm.
This statute has long been problematic for this and other courts (see, People v Crivillaro, 142 Misc 2d 527 [1989] [hereinafter Crivillaro I]; People v Santiago, 133 Misc 2d 161 [Sup Ct, NY County 1986, Kleiman, J.]). In Crivillaro I this court denied the defendant’s application to dismiss the indictment. That application concerned the question of whether a firearm within the definitions of Penal Law article 265 must be both less than 26 inches in over-all length and have a barrel length of less than 18 inches.
Penal Law § 265.00 (3) defines a firearm, as we are concerned with here, in two distinct ways.
The People’s position is that the weapon in question is a shotgun. Implicit in that position is the assumption that since the statutory definition of a shotgun includes the words "made or remade” (Penal Law § 265.00 [12]) the weapon cannot be reexamined as to its compliance with the statutory definition of a shotgun, i.e., once a shotgun always a shotgun. In support of this position the People cite the cases of Brook v State of Indiana (448 NE2d 1249 [Ind App 1983]) and State v Klosowski (310 A2d 656 [Super Ct Del 1973]).
This court has examined the weapon in question and finds that as a matter of law it is not a shotgun as defined in Penal Law § 265.00 (12). It is clear that the weapon, as it is today, is not intended to be fired from the shoulder. It, therefore, fails to meet one of the statutory criteria defining a shotgun.
When an issue, ordinarily one of fact, such as whether or not a weapon is intended to be fired from the shoulder, is such as to admit of only one answer or be such that no reasonable person could in the court’s judgment find facts to be any other way, then the court may determine such fact as a matter of law (People v Oquendo, 134 AD2d 203 [1st Dept 1987]; see also, Howard v Poseidon Pools, 72 NY2d 972 [1988]; Boltax v Joy Day Camp, 67 NY2d 617 [1986]; Kingsland v Industrial Brown Hoist Co., 136 AD2d 901 [4th Dept 1988]; Baginski v New York Tel. Co., 130 AD2d 362 [1st Dept 1987]). This is such a matter. This court finds, therefore, that as a matter of law the weapon in question was not intended to be fired from the shoulder. Therefore, the weapon in question is, as a matter of law, not a shotgun as defined in the Penal Law (§ 265.00 [3], [12]).
That leaves the question of whether this weapon can still be considered a firearm under the criteria defining weapons made from shotguns as set out in Penal Law § 265.00 (3).
In order for a weapon made from a shotgun to be considered a firearm within the statutory definition, it must have an over-all length of less than 26 inches. However since it is agreed by the People and the defendant that the over-all length of this weapon is 29 inches it is not within the statutory definition of a firearm (Penal Law § 265.00 [3], [12]). The court has no choice, therefore, but to dismiss this indictment.
The court has also been requested to make a determination
It appears to this court that the Legislature has intended to outlaw all types of weapons made from shotguns which are less than 26 inches and/or have a barrel length of less than 18 inches. It would appear to me that the statute ought to be able to accomplish this goal by adding to the end of the first sentence of section 265.00 (3) (d) the words "and/or a barrel length of less than 18.” Thus weapons made from shotguns, with a barrel length of less than 18 inches but more than 26 inches in over-all length, as is the case here, would also be considered firearms. As an alternative the Legislature could remove the words "and intended to be fired from the shoulder” from the statutory definition of a shotgun. I urge the enactment of either or both of these amendments so as to effectuate the intent of the Legislature and more effectively protect the people of our State. In furtherance of that goal a copy of this decision will be transmitted to the appropriate legislative committee.
. The parties have agreed that the weapon in question is more than 26 inches in over-all length with a barrel less than 18 inches in length.
. The statute has since been amended however the amendment is irrelevant so far as this application is concerned.