People v. Schoonmaker

40 A.D.2d 1066, 339 N.Y.S.2d 338, 1972 N.Y. App. Div. LEXIS 2972

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1972
• Status: Published

Opinion

Appeal from an order of the County Court of Greene County, entered February 16, 1972, which granted a motion by defendant to suppress evidence. During the course of a routine patrol, a New York State Trooper had occasion to question the presence of respondent and others at a laundromat on Route 9-W, Town of Coxsackie, Greene County, New York, at about 1:30 a.m. on Jxdy 1, 1970. While he was examining the registration to a motor vehicle being driven by respondent, his partner observed a wooden shaft, 26 inches long and approximately l-% inches in diameter, with a leather thong attached with perforations at the end of the shaft, in plain view' on a shelf at the back window of the vehicle. This object was removed from the vehicle and respondent was arrested and subsequently indicted for a violation of subdivision 3 of section 265.05 of the Penal Law (along with another count not pari of this appeal) which provides as follows: “ 3. Any person who has in his possession any firearm, gravity knife, switchblade, knife, cane sword, billy, blackjack, bludgeon, metal knuckles, sandbag, sandclub or slungshot is guilty of a class A misdemeanor, and he is guilty of a class D felony if he has previously been convicted of any crime.” At a subsequent suppression hearing, the People introduced evidence to show that the subject item was a “billy”, equating the same with a nightstick and a baton. Volume' I of the New York State Police Manual was introduced to show that the subject item, which is .a standard issue to each State policeman, is referred to as a “ baton ”. Several definitions of a “billy” were referred to during the hearing. The court below gave a strict construction to the terms of subdivision 3 of section 265.05 holding that the instrument in question was a “nightstick” or “baton” and not a “ billy ”, thus not one of the prohibitive items contained in the statute. It concluded that a “billy” was a smaller instrument, shorter in length and capable of being carried in a pocket. We arrive at a different conclusion. The length of the particular object is not determinative, but the purpose for which it is designed. The instrument in question was a “policemen’s club” [Black’s Law Dictionary [4th ed.] p. 213), which fits any standard definition. of the term “ billy ”, and thus the type of dangerous instrument the Legislature intended to remove from the hands of the general public. Order reversed, on the law and the-facts, and motion denied. Herlihy, P. J., Staley, Jr., Sweeney, Simons and Kane, JJ., concur.