NY Case Involving Imitation Pistol

In People v. Diaz, 147 Misc 2d 121, 554 NYS2d 802 (Crim. Ct. NY Co. 1990) the defendant argued that since the complaint failed to negate each clause of the statutory exception, the complaint did not contain factual allegations sufficient to support every element of the charged offense. The court in Diaz rejected the defendant's argument that allegations which stated that the imitation pistol was black but failed to state that the barrel of the toy gun was closed were facially insufficient, focusing on the conjunctive nature of the exceptions, and holding that allegations which specifically negate one of the clauses are sufficient to remove the conduct from the statutory exception.