People v. Serrano

OPINION OF THE COURT

Bloom, J.

On August 2, 1978, defendant was arrested in the hallway of a house on the lower east side. Initially, the contemplated charges were limited to criminal possession of a controlled substance in the seventh degree, criminally using drug paraphernalia in the second degree, criminally possessing a hypodermic instrument and unlawful possession of marihuana. However, a search of his vehicle which was parked nearby disclosed possession of a loaded firearm. Accordingly, when the indictment was handed down, it included as the first count a charge of criminal possession of a weapon in the third degree.

Thereafter, defendant moved, among other things, to dismiss the weapons count upon the ground that he was authorized to possess the weapon in accordance with a license issued to him by the Police Department of the City of New York. In fact, a "premises license” had been issued to defendant on November 18, 1977, which apparently had been renewed to cover the period January 1, 1978 to December 31, 1978. The premises described in the application for the permit was 632 Grand Street, Brooklyn, New York, which was the location of defendant’s insurance brokerage business. Defendant contends that section 265.20 (subd a, par 3) of the Penal Law exempts "[possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00, provided, that such a license shall not preclude a conviction for the offense defined in subdivision three of section 265.01” (which makes it a crime to knowingly possess "a rifle, shotgun or firearm in or upon a building or grounds, used for educational purposes, of any school, college or university, except the forestry lands, wherever located, owned and maintained by the State University of New York college of environmental science and forestry, without the written authorization of such educational institution”). He asserts that section 265.20 (subd a, par 3) by specifically permitting prosecution for violation of subdivision (3) of section 265.01 is indicative of a legislative intent to preclude prosecution for all other weapons charges. Hence, he claims that since he possessed a license for the pistol or revolver here involved, he may not be prosecuted under section 265.02.

Criminal Term, relying on his decision in People v Parker (91 Misc 2d 363) granted the motion and dismissed the weapons count. The People have appealed from this determination as they did from the holding of Criminal Term in Parker.

In Parker we reversed (70 AD2d 387). However, we find the fact pattern here presented is substantially different from that presented by Parker. Accordingly, we affirm but for reasons other than those relied upon by Criminal Term.

Section 400.00 of the Penal Law, which is the omnibus provision governing the issuance of a license for a pistol or revolver provides in subdivision 2 thereof for different categories of licenses. These include "to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (e) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; and (f) have, possess, collect and carry antique pistols”. Subdivision 15 of section 400.00 provides that violation of any provision of the licensing statute shall constitute a class A misdemeanor.

In Parker defendant was indicted for criminal possession in the second degree, i.e., possession of a weapon with intent to use it unlawfully against another. The indictment and other papers submitted to us disclosed that Parker, who possessed a license to have and possess a pistol or revolver in his dwelling, got into an argument on the street with his girlfriend. He went to his home, took the weapon and returned to the street where he threatened her with it. Our consideration of the case resulted in four separate opinions. Justice Silverman, who wrote the plurality opinion and with whom the Presiding Justice concurred, noted "that the exemption [contained in § 265.20] 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’ ”. (70 AD2d 387, 389.) Justice Markewich who concurred, noted that the main thrust of the charge was an intent to commit an assault. Had the assault, in fact, occurred, the defendant could not escape prosecution therefor simply because the weapon was possessed under a valid license "to have and possess in his dwelling by a householder”. (Penal Law, § 400.00, subd 2, par [a].) I concurred on the limited ground that defendant was charged with possession with intent to use the weapon unlawfully against another. The added ingredient of intent to use unlawfully against another was sufficient, I felt, to subject the defendant to prosecution under the indictment. Justice Birns dissented, holding that the exemption contained in section 265.20 (subd a, par 3) was sufficiently broad to include Parker within its embrace. Any correction of the situation, he asserted, must be legislative and not judicial.

Here, however, we are confronted with the charge of naked possession. All that is asserted is that the weapon for which, concededly, defendant held a license "to have and possess in his place of business by a merchant or storekeeper” (Penal Law, § 400.00, subd 2, par [b]) was possessed in a place other than that specified in the license. In giving sweep to what is conceived to be legislative intent, we must be careful not to legislate. In that connection it would be well to bear in mind the admonition of Mr. Justice Holmes that "judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions”. (Southern Pacific Co. v Jensen, 244 US 205, 221.) Here, the legislative intent is manifest by its inclusion of subdivision 15 in section 400.00 of the Penal Law. That subdivision denominates the act here sought to be prosecuted as a class A misdemeanor and not the class D felony specified in section 265.02. We are bound thereby.

Given the disparity in fact patterns between this case and Parker and the differences in opinion among those comprising the majority in that case, we do not think that the disparate conclusions reached tend to undermine the principle of institutional stability (compare People v Davis, 46 NY2d 780 with People v Murray, 40 NY2d 327).

Accordingly, the order of Criminal Term (Milonas, J.), rendered February 8, 1979, should be affirmed.