*388OPINION OF THE COURT
Silverman, J.The People appeal from an order of the Supreme Court, Trial Term, dismissing the indictment before trial pursuant to CPL 210.20 (subd 1, par [h]) i.e.: "(h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”.
Defendant was indicted for criminal possession of a weapon in the second degree as defined in section 265.03 of the Penal Law, i.e., possession of a loaded firearm, to wit, a pistol, "with intent to use the same unlawfully against another.” Defendant moved to dismiss the indictment on the ground that defendant had a license for this weapon, issued under section 400.00 of the Penal Law, and therefore section 265.03 did not apply to his possession of the weapon under the express exemption in section 265.20 (subd a, par 3) of the Penal Law. The Trial Term agreed with this contention and dismissed the indictment.
We note to begin with that the record leaves something to be desired as to establishing the basic facts as to the license. Defendant submitted an affidavit in which he said that at the relevant date he had a license issued pursuant to section 400.00 of the Penal Law, and that that license was now in the possession of the police. In a memorandum of law, however, defendant’s attorney qualifies this statement by saying that defendant possessed an on-premises license and a target license. The District Attorney submitted a memorandum of law in which, conceding that the defendant had a valid license, the statement was made that the license did not entitle the defendant to carry a concealed loaded weapon on a public street, "as the indictment alleges he did” (which it does not, although the criminal court complaint does seem to indicate that the offense is alleged to have been committed on a public street). The record does not contain a copy of the license and apparently none was before the Trial Term Justice. Statements in memoranda of law are not the way to present to the court record facts upon which the court is asked to make a determination.
However, the Trial Term and the parties all assumed—and it does not appear to be disputed—that defendant had a limited firearm license issued under section 400.00 of the Penal Law, which did not permit him to carry a loaded pistol on a public street, and that he was in fact carrying such a *389loaded pistol on a public street at the time of the incident referred to in the indictment. In our view the exemption of section 265.20 (subd a, par 3) with respect to persons to whom a license for possession of a pistol or revolver has been issued as provided under section 400.00, does not preclude prosecution for violation of section 265.03 where the weapon is carried in violation of the limitations or conditions of the license issued. We think that in general the fair meaning and application of section 265.20 (subd a, par 3), which provides that certain sections, including section 265.03, shall not apply to possession "by a person to whom a license therefor has been issued as provided under section 400.00,” is that that exemption relates to a weapon carried within the limitations and conditions of the license issued under section 400.00 and not to possession of a weapon carried in violation of those limitations and conditions. As to such unauthorized possession, no license "therefor” has been issued under section 400.00.
Our dissenting brother points to the exception to immunity explicitly referred to in section 265.20 (subd a, par 3) with respect to the offense defined in subdivision (3) of section 265.01 of the Penal Law, possession of a weapon on university or school grounds. But that exception is intended to indicate one situation in which there is no immunity even where the license is unrestricted. It is quite another thing to infer from that exception that in other situations the immunity extends even to carrying a weapon in violation of the restrictions in the license.
Subdivision 15 of section 400.00 of the Penal Law provides that any violation of any provision of that section is a class A misdemeanor. The meaning and applicability of that subdivision are extremely unclear. Section 400.00 covers almost seven pages in McKinney’s Consolidated Laws, including such things as form of applications, investigation, exhibition and displaying of license, fees, etc. The section is concerned with licensing. It appears in Part Four of the Penal Law entitled "Administrative Provisions.” While subdivision 2 of section 400.00 specifies types of licenses, the section does not explicitly forbid the carrying of a weapon with or without a license, or within or without the limitations of the license. The express prohibitions against, and offenses related to, carrying weapons are contained in article 265 of the Penal Law which is under Part Three "Specific Offenses,” Title P, "Offenses Against Public *390Safety.” It is thus unlikely that the penal sanction for carrying a weapon in violation of the limitations or conditions of a license is the misdemeanor provision of subdivision 15 of section 400.00.
But assuming that this misdemeanor penalty applies to violation of the limitations and conditions of the license, that should not prevent more severe criminal liability with respect to criminal offenses which involve elements additional to those specified in section 400.00. Here defendant is charged with violation of section 265.03, i. e., possession of a weapon "with intent to use the same unlawfully against another.” As in other crimes defined by our statutes, the additional aggravating element raises the classification or degree of the crime.
No doubt the statute could have been drawn more carefully to eliminate the logical and verbal difficulties that troubled the Trial Term Justice. For example, it is hard to see why even possession of an unlimited license should exempt one from section 265.03 which penalizes possession of a loaded firearm "with intent to use the same unlawfully against another.” But we see no difficulty about holding that the exemption simply does not apply when the possession is in violation of the limitations and conditions of the license. As to such possession, the possessor is in legal effect not "a person to whom a license therefor has been issued.”
For the reasons we have stated, we think nothing in the statute precludes that interpretation. We therefore do not feel compelled to read into the statute the contrary interpretation which the Trial Term Justice made "reluctantly” and which he agreed was "undesirable” and "surely not one intended by the Legislature.”
The order of the Supreme Court, New York County (Milonas, J.), entered September 2, 1977, dismissing the indictment pursuant to CPL 210.20 (subd 1, par [h]) should be reversed, on the law, the motion to dismiss denied, and the indictment reinstated, without prejudice to a new motion based on materially different facts, if any, properly established of record.