People v. Ross — 61 N.Y.2d 316

Majority

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In the Matter of Michael R., Appellant. The People of the State of New York, Respondent, v Chris Ross, Appellant.

Argued February 17, 1984;

decided March 22, 1984

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POINTS OF COUNSEL

Arnold S. Cohen and Lenore Gittis for appellant in the first above-entitled proceeding.

I. Appellant’s possession of a starter’s pistol did not violate subdivision g of section 436-5.0 of the New York City Administrative Code which prohibits the sale or possession of toy or imitation pistols. (People v Rivers, 76 Misc 2d 972 ; People v Klufus, 1 Misc 2d 828 , 2 AD2d 958 ; People v Schmidt, 221 App Div 77 ; People v Grillo, 15 AD2d 502 , 11 NY2d 841 ; People v Ross, 58 NY2d 1123 ; People v Pearson, 85 Misc 2d 1029 ; People v Davis, 82 Misc 2d 947 ; People v Judiz, 38 NY2d 529 .) II. Appellant’s Federal and State constitutional rights were violated when Police Officer John Kelly seized appellant based solely on appellant’s presence with other persons whom the officer believed had committed a crime. The gun recovered from appellant must be suppressed because its discovery was the direct result of appellant’s illegal detention. (People v Martin, 32 NY2d 123 ; Sibron v New York, 392 US 40 ; Wong Sun v United States, 371 US 471 ; Terry v Ohio, 392 US 1 ; People v Cantor, 36 NY2d 106 ; People v Howard, 50 NY2d 583 , 449 US 1023 ; Dunaway v New York, 442 US 200 ; Brown v Texas, 443 US 47 ; Adams v Williams, 407 US 143 ; United States v Brignoni-Ponce, 422 US 873 .) III. The starter’s pistol must be suppressed because the frisk of appellant was unlawful. The officers failed to articulate facts that could support a reasonable belief that appellant was armed and presently dangerous. (Terry v Ohio, 392 US 1 ; People v Mack, 26 NY2d 311 ; Ybarra v Illinois, 444 US 85 ; People v Mitchell, 75 AD2d 626 ; People v Prochilo, 41 NY2d 759 ; People v Marquez, 80 AD2d 837 ; People v Blackman, 61 AD2d 916 ; People v Stewart, 41 NY2d 65 ; People v Grant, 42 NY2d 1019 ; People v Benjamin, 51 NY2d 267 .)

Frederick A.O. Schwarz, Jr., Corporation Counsel {Helen P. Brown and Michael Gage of counsel), for respon

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dent in the first above-entitled proceeding.

I. The evidence presented to the Family Court of appellant’s possession of a starter’s pistol established beyond a reasonable doubt his violation of subdivision g of section 436-5.0 of the New York City Administrative Code. (People v Judiz, 38 NY2d 529 ; People v Klufus, 1 Misc 2d 828 , 2 AD2d 958 ; People v Webb, 78 Misc 2d 253 ; People v Pearson, 85 Misc 2d 1029 ; People v Davis, 82 Misc 2d 947 ; Matter of Jamie D., 59 NY2d 589 ; People v O’Neill, 86 AD2d 213 ; People v Williams, 113 Misc 2d 595 ; People v Rivers, 76 Misc 2d 972 .) II. Respondent properly stopped appellant for questioning when it reasonably appeared that a crime was being committed. Respondent’s frisk of appellant for weapons was appropriate based upon his reasonable fear for his life under the circumstances. The Family Court properly denied the motion to suppress appellant’s gun. (Matter of Hofbauer, 47 NY2d 648 ; Terry v Ohio, 392 US 1 ; People v Cantor, 36 NY2d 106 ; People v Valentine, 17 NY2d 128 ; Brown v Texas, 443 US 47 ; People v Howard, 50 NY2d 583 , 449 US 1023 ; Adams v Williams, 407 US 143 ; People v De Bour, 40 NY2d 210 ; Ybarra v Illinois, 444 US 85 ; People v Sanchez, 38 NY2d 72 .)

Eve Cary and William E. Hellerstein for appellant in the second above-entitled action.

A real but inoperable pistol is not an “imitation” pistol within the meaning of subdivision g of section 436-5.0 of the New York City Administrative Code. (People v Williams, 113 Misc 2d 595 ; People v Rivers, 76 Misc 2d 972 ; People v Pearson, 85 Misc 2d 1029 ; People v Davis, 82 Misc 2d 947 ; People v Byron, 17 NY2d 64 ; People v Ditta, 52 NY2d 657 ; People v Gottlieb, 36 NY2d 629 ; United States v Harriss, 347 US 612 ; People v Judiz, 38 NY2d 529 .)

Mario Merola, District Attorney {Muriel Sanders and Peter D. Coddington of counsel), for respondent in the second above-entitled action.

An actual but inoperable pistol is an imitation pistol which substantially duplicates an actual pistol within the meaning intended by the Administrative Code. (People v Judiz, 38 NY2d 529 ; People v Webb, 78 Misc 2d 253 ; People v Klufus, 1 Misc 2d 828 , 2 AD2d 958 ; People v Grillo, 11 NY2d 841 ; Guiseppi v Walling, 144 F2d 608 ; People v Pearson, 85 Misc 2d 1029 ; People

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v Davis, 82 Misc 2d 947 ; People v Williams, 113 Misc 2d 595 ; People v Rivers, 76 Misc 2d 972 ; Smith v People, 47 NY 330 .)

OPINION OF THE COURT

The question presented on these appeals is whether the object possessed — in one case a real but inoperable handgun, and in the other a starter’s pistol — is a “toy or imitation pistol or revolver” within the meaning of subdivision g of section 436-5.0 of the New York City Administrative Code.

In Ross, defendant was arrested for possession of a .25 caliber silver-plated Baretta pistol loaded with four rounds of ammunition, and charged with criminal possession of a weapon (Penal Law, § 265.02, subd [4]). When the gun was found to be inoperable because of a faulty firing pin, the charge was reduced and defendant was accused, by information, with violating subdivision g of section 436-5.0 of the New York City Administrative Code, which provides in part: “It shall be unlawful for any person to sell or offer for sale, possess or use or attempt to use or give away, any toy or imitation pistol or revolver which substantially duplicates an actual pistol or revolver, unless said imitation or toy pistol or revolver shall be colored in colors other than black, blue, silver or aluminum, and further provided that the barrel of said toy or imitation pistol or revolver shall be closed with the same material of which the toy or imitation pistol or revolver is made for a distance of not less than one-half inch from the front end of said barrel”. On defense motion, Criminal Court dismissed the information, concluding that “an inoperable real revolver or pistol does not come within the purview of N.Y.C. Admin. Code Sec. 436-5.0 (g).” The Appellate Term reversed, in a 2 to 1 decision, holding that an inoperable pistol should be treated as an “imitation pistol.”

In Matter of Michael R., appellant, 14 years old, was charged with possessing a “black Italian starter’s pistol,” an act which if committed by an adult would have been a violation of subdivision g of section 436-5.0 of the Administrative Code. The pistol was inoperable. After a fact-find

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ing hearing, Family Court determined that the acts alleged in the petition had been proven, adjudged appellant a juvenile delinquent, and placed him on probation for one year. The Appellate Division affirmed, without opinion.

In both cases, appellants argue that the objects possessed cannot be regarded as a “toy or imitation pistol or revolver,” within the meaning of the Administrative Code.

Whether it might have been wise for the city council to prohibit the possession of real but inoperable pistols along with its prohibition of toys and imitations, we deal only with the plain and natural meaning of the language employed. A real pistol or revolver, even though inoperable, simply is not a “toy or imitation”. As noted by the court in People v Rivers ( 76 Misc 2d 972 , 975), “one would not call a broken radio a copy of a real radio or a defective toaster a copy of a real toaster.” Thus, the information in Ross must be dismissed.

However, we reach the opposite conclusion as to the starter’s pistol. A starter’s pistol is a gun manufactured to fire blank cartridges and is most commonly used as a signaling device at athletic events. It is, in essence, a noisemaker designed to resemble an actual firearm. As such, it is an imitation pistol and its possession is prohibited by the statute.

We have considered the remaining arguments in Matter of Michael R. and find them to be without merit.

The order of the Appellate Term in People v Ross should be reversed and the information dismissed. The order of the Appellate Division in Matter of Michael R. should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

In Matter of Michael R.: Order affirmed, etc.

In People v Ross: Order reversed, etc.

Cases cited

People v. Rivers 76 Misc 2d 972 N.Y. Crim. Ct. 1974-01-18 at 975 p. 317, p. 318, p. 319, p. 320
People v. Klufus 1 Misc 2d 828 N.Y. Magis. Ct. 1956-02-03 p. 317, p. 318
People v. Grillo 11 NY2d 841 N.Y. 1962-04-05 p. 317, p. 318
People v. Pearson 85 Misc 2d 1029 N.Y. Crim. Ct. 1976-03-08 p. 317, p. 318
People v. Davis 82 Misc 2d 947 N.Y. Crim. Ct. 1975-08-06 p. 317, p. 318, p. 319
People v. Judiz 38 NY2d 529 N.Y. 1976-02-10 p. 317, p. 318
People v. Martin 32 NY2d 123 N.Y. 1973-03-23 p. 317
Sibron v. New York 392 US 40 SCOTUS 1968-06-10 p. 317
Wong Sun v. United States 371 US 471 SCOTUS 1963-01-14 p. 317
Terry v. Ohio 392 US 1 SCOTUS 1968-06-10 p. 317, p. 318
People v. Cantor 36 NY2d 106 N.Y. 1975-02-18 p. 317, p. 318
People v. Howard 50 NY2d 583 N.Y. 1980-07-03 p. 317, p. 318
Gormley v. Director, Connecticut State Department of Adult Probation 449 US 1023 SCOTUS 1980-12-01 p. 317, p. 318
Dunaway v. New York 442 US 200 SCOTUS 1979-06-05 p. 317
Brown v. Texas 443 US 47 SCOTUS 1979-06-25 p. 317, p. 318
Adams v. Williams 407 US 143 SCOTUS 1972-06-12 p. 317, p. 318
United States v. Brignoni-Ponce 422 US 873 SCOTUS 1975-06-30 p. 317
People v. Mack 26 NY2d 311 N.Y. 1970-04-16 p. 317
Ybarra v. Illinois 444 US 85 SCOTUS 1979-11-28 p. 317, p. 318
People v. Mitchell 75 AD2d 626 N.Y. App. Div. 1980-04-21 p. 317
People v. Grant 42 NY2d 1019 N.Y. 1977-10-04 p. 317
People v. Benjamin 51 NY2d 267 N.Y. 1980-11-18 p. 317
People v. Webb 78 Misc 2d 253 N.Y. Crim. Ct. 1974-06-05 p. 318
In re Jamie D. 59 NY2d 589 N.Y. 1983-07-12 p. 318
People v. O'Neill 86 AD2d 213 N.Y. App. Div. 1982-04-26 p. 318
People v. Williams 113 Misc 2d 595 N.Y. Crim. Ct. 1982-04-01 p. 318, p. 319
In re Hofbauer 47 NY2d 648 N.Y. 1979-07-10 p. 318
People v. Valentine 17 NY2d 128 N.Y. 1966-03-24 p. 318
People v. De Bour 40 NY2d 210 N.Y. 1976-06-15 p. 318
People v. Sanchez 38 NY2d 72 N.Y. 1975-11-25 p. 318
People v. Byron 17 NY2d 64 N.Y. 1966-02-24 p. 318
People v. Ditta 52 NY2d 657 N.Y. 1981-05-12 p. 318
People v. Gilbert Gottlieb & 220 Crescent, Inc. 36 NY2d 629 N.Y. 1975-06-09 p. 318
United States v. Harriss 347 US 612 SCOTUS 1954-06-07 p. 318
Smith v. People 47 NY 330 N.Y. 1872-01-30 p. 319