People v. Davis

Criminal Court of the City of New York

People v. Davis

107 Misc. 2d 1, 433 N.Y.S.2d 56, 1980 N.Y. Misc. LEXIS 2816

CourtCriminal Court of the City of New York

DecidedOctober 15, 1980

StatusPublished

Cited by2 cases

This text of 107 Misc. 2d 1 (People v. Davis) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Davis, 107 Misc. 2d 1, 433 N.Y.S.2d 56, 1980 N.Y. Misc. LEXIS 2816 (N.Y. Super. Ct. 1980).

Pincite

Opinion

OPINION OF THE COURT

Max H. Galfunt, J.

After hearing, this case is held for the action of the Grand Jury. The sawed-off shotgun herein was discovered by the police officer in the back pocket of the defendant covered by his outer clothes. Although the testimony indicated the sawed-off shotgun is approximately 22 inches overall in [2]*2length, it is a concealable weapon by virtue of the fact that it was cut down to a size where it could be concealed and further, by the indisputable fact that it was concealed on the person of the defendant.

The defendant cites three cases, People v Palermo (36 AD2d 565), People v Roberts (73 Misc 2d 500) and Matter of Peabody (86 Misc 2d 520), all of which are concerned with sawed-off shotguns varying in over-all length between approximately 18 inches to approximately 23 inches. The courts in these cases indicated that such weapons by virtue of their size were not concealable firearms as contemplated by the statute.

In the Palermo case, the sawed-off shotgun was 18 inches overall in length and was confiscated from the trunk of defendant’s car. In the Roberts and Peabody cases the sawed-off shotguns were 22 and 23 V2 inches in over-all length and were confiscated from the homes of the respective defendants. The instant case is distinguishable from those cited in that the defendant herein had actually and factually concealed the weapon on his person. Thus to find that this sawed-off shotgun was not of a size capable of concealment is ludicrous and contrary to fact.

An interesting grammatical reading of subdivision 3 of section 265.00 of the Penal Law defining a firearm thusly, “ ‘Firearm’ means any pistol, revolver, sawed-off shotgun or other firearm of a size which may be concealed upon the person, except an antique firearm”, could be concluded to mean that a firearm is a pistol, a revolver, a sawed-off shotgun, or any other firearm of a size that may be concealable upon the person, thus conceding that the three named weapons are per se firearms.

In any event, this court finds that the sawed-off shotgun herein is a firearm capable of concealment and this case is held for the action of the Grand Jury.

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OPINION OF THE COURT

Max H. Galfunt, J.

After hearing, this case is held for the action of the Grand Jury. The sawed-off shotgun herein was discovered by the police officer in the back pocket of the defendant covered by his outer clothes. Although the testimony indicated the sawed-off shotgun is approximately 22 inches overall in [2]*2length, it is a concealable weapon by virtue of the fact that it was cut down to a size where it could be concealed and further, by the indisputable fact that it was concealed on the person of the defendant.

The defendant cites three cases, People v Palermo (36 AD2d 565), People v Roberts (73 Misc 2d 500) and Matter of Peabody (86 Misc 2d 520), all of which are concerned with sawed-off shotguns varying in over-all length between approximately 18 inches to approximately 23 inches. The courts in these cases indicated that such weapons by virtue of their size were not concealable firearms as contemplated by the statute.

In the Palermo case, the sawed-off shotgun was 18 inches overall in length and was confiscated from the trunk of defendant’s car. In the Roberts and Peabody cases the sawed-off shotguns were 22 and 23 V2 inches in over-all length and were confiscated from the homes of the respective defendants. The instant case is distinguishable from those cited in that the defendant herein had actually and factually concealed the weapon on his person. Thus to find that this sawed-off shotgun was not of a size capable of concealment is ludicrous and contrary to fact.

An interesting grammatical reading of subdivision 3 of section 265.00 of the Penal Law defining a firearm thusly, “ ‘Firearm’ means any pistol, revolver, sawed-off shotgun or other firearm of a size which may be concealed upon the person, except an antique firearm”, could be concluded to mean that a firearm is a pistol, a revolver, a sawed-off shotgun, or any other firearm of a size that may be concealable upon the person, thus conceding that the three named weapons are per se firearms.

In any event, this court finds that the sawed-off shotgun herein is a firearm capable of concealment and this case is held for the action of the Grand Jury.

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Bluebook (online)

107 Misc. 2d 1, 433 N.Y.S.2d 56, 1980 N.Y. Misc. LEXIS 2816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davis-nycrimct-1980.

Opinion

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