I dissent. The order of Trial Term dismissing the indictment was correct. My colleagues, in voting to reinstate the indictment, have refused to apply the exemption provided by section 265.20 (subd a, par 3) of the Penal Law to this prosecution under section 265.03. As a consequence, my colleagues have in effect substantially modified the provisions of section 265.20 (subd a, par 3).
The facts in this case are not in dispute. Defendant had a license issued under section 400.00 (subd 2, par [a]) entitling him to possess his pistol at his home. On June 15, 1977, while on a public street, defendant allegedly pointed the pistol at his girlfriend Winifred Garrison. On June 16, 1977 defendant was charged in a Criminal Court complaint with criminal possession of a weapon in the second degree, menacing, assault and harassment. The Grand Jury however returned an indictment charging defendant solely with the crime of criminal possession of a weapon in the second degree (Penal Law, § 265.03) in that he "possessed a loaded firearm, to wit, a pistol, with intent to use the same unlawfully against another.” The record contains no explanation for the failure to charge defendant with any other violation of law.
*392Section 265.20 (subd a, par 3) of the Penal Law entitled "Exemptions” specifically provides, insofar as applicable here, that section 265.03 (and other sections pertaining to criminal possession of weapons) "shall not apply to * * * possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00” (emphasis added).
The motion to dismiss the indictment required the trial court to consider, as a threshold question, whether defendant fell within the exemption, i.e., whether he was a person to whom a license (for the particular weapon) had been issued under section 400.00 of the Penal Law. The court correctly concluded that the answer was yes. Having found, the answer to the first question in the affirmative, the trial court was next required to consider whether the crime charged, to wit, violation of section 265.03 of the Penal Law, was within the ambit of the exemption. The court concluded that the crime came within the exemption, since the exemption as written "neither differentiates between types of licenses nor between degrees of possession, including those, such as section 265.03 of the Penal Law, which require unlawful intent as an element of the crime.” (91 MisC 2d 363, 364-365.) From an examination of the pertinent sections of the Penal Law, the trial court’s conclusions appear to be correct, a view which is fortified by language in subdivision 15 of section 400.00 which provides: "Any violation by any person of any provision of this section is a class A misdemeanor.” However, my colleagues by applying statutory construction and divining legislative intent, choose to characterize as felonious, conduct which has statutorily been denominated that of a misdemeanant. This court should not, by judicial fiat, correct what it perceives to be the deficiencies in the statutory scheme by effectively writing a substantial modification into the exemption statute, which was not enacted by the Legislature as part of that statute.
In my view, the determination of the trial court is correct, for the following reasons:
(1) The plain language of section 265.20 (subd a, par 3) provides that section 265.03 shall not apply to possession of a pistol or revolver by a person to whom a license therefor has been issued pursuant to section 400.00. It cannot be denied that in the case before us a license for possession of the weapon had been issued to defendant pursuant to section 400.00.
*393(2) If the Legislature had meant to allow prosecution for a violation of section 265.03 in circumstances where possession of the weapon by the licensee is alleged to have occurred outside the geographical area permitted by the license, the Legislature could have provided for such prosecution merely by stating in section 265.20 (subd a, par 3) that criminal prosecution for that offense shall be prohibited only where the possession charged is within the geographical area specified in the license (see People v Gottlieb, 36 NY2d 629, 632-633).
(3) The statute does provide one exception to the exemption, namely, that a license shall not preclude a conviction for the offense defined in subdivision (3) of section 265.01 (possession of a weapon on university or school grounds). Thus the Legislature did consider exceptions to the immunity granted by section 265.20 (subd a, par 3). The Legislature did not go on to provide, as it could have done so easily, that the statute shall not immunize prosecution for a possessory crime committed in a location outside the geographical area specified in the license, or that the statute shall not apply to a licensed person charged with possession of a weapon "with intent to use the same unlawfully against another.”
(4) If one were to agree that it is unclear whether the Legislature intended to treat a person who did have a license, but possessed the weapon outside the geographical limits specified in his license, as if he were a person with no license at all,* any doubts as to the meaning of the legislation should be resolved against the State and in favor of defendant upon the familiar principle that "a criminal statute must be sufficiently definite, clear and positive to give unequivocal warning to citizens of the rule which is to be obeyed” (People v Byron, 17 NY2d 64, 66).
(5) I cannot, as the majority does, cavalierly disregard subdivision 15 of section 400.00 of the Penal Law as being extremely unclear. The Legislature stated in subdivision 15 of section 400.00 that a violation of any provision of section *394400.00 is a class A misdemeanor. Contrary to the statement contained in the majority opinion, section 400.00 does forbid the carrying of a weapon without a license, or without the limitations of the license, in the following language: "Every licensee while carrying a pistol or revolver shall have on his person a license to carry the same. Every person licensed to possess a pistol or revolver on particular premises shall have the license for the same on such premises.” (Penal Law, § 400.00, subd 8.) The fact that subdivision 15 of section 400.00 appears at the end of seven pages in McKinney’s Consolidated Laws, pages which discuss such items as application forms, investigation, exhibition, displaying of licenses, expenses and fees cannot support a conclusion that the vitality of subdivision 15 of section 400.00 is questionable as a sanction in the instant case.
(6) The majority appears troubled by policy considerations inherent in providing an exemption from prosecution to a person charged with a violation of section 265.03 of the Penal Law, even when that person possesses an unlimited license. Good policy or bad policy—that is what the statute says. Courts should not torture clear statutory language to mean what it does not say, in the dubious interest of reaching a result which the court perceives to be more desirable.
Although it is my view that in this case defendant cannot be prosecuted for a violation of section 265.03, there are indeed remedies available for the improper use of the weapon or violation of the license, i.e., the administrative procedure of license revocation, or criminal prosecution for menacing, attempted assault, harassment or the violation under subdivision 15 of section 400.00—charges which were omitted from the indictment.
Murphy, P. J., concurs with Silverman, J.; Bloom and Markewich, JJ., concur in separate opinions; Birns, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on September 2, 1977, 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.
The majority explicitly adopts this construction. Thus, a person licensed to possess a loaded firearm in his home, but who steps one foot out the door with the firearm, automatically becomes a class D felon subject to seven years’ imprisonment (Penal Law, § 265.02, subd [4]) as well as other penalties and forfeitures (e. g., automatic disbarment if he were a lawyer). I will not so easily presume that the Legislature intended to treat the possessor of a firearm in such circumstances as "not * * * a person to whom a license therefor has been issued”, and the harsh consequences which would result therefrom, in construing the meaning of section 265.20 (subd a, par 3). (See People v Serrano, 71 AD2d 258.)