Is It Required to Prove That a Weapon Is Operable to Establish Its Criminal Possession ?
In People v. Longshore (86 NY2d 851 ), the Court of Appeals was presented with the question of whether the evidence proved the weapon in question was operable.
The People conceded that they failed to establish operability but contended that the statute did not require them to prove operability.
It is now accepted that to establish criminal possession of a handgun, the People must prove that the weapon is operable.
People v. Grillo, 15 AD2d 502 (2d Dept), affd 11 NY2d 841 (1962);
People v. Lugo, 161 AD2d 122 (1st Dept 1990);
People v. Actie, 99 AD2d 815 (2d Dept 1984);
People v. Donaldson, 49 AD2d 1004 (4th Dept 1975);
People v. Saunders, 85 NY2d 339, 342 (1995);
People v. Cavines, 70 NY2d 882, 883 (1987).
Furthermore, it appears that the courts have assumed the same rule applies to criminal possession of rifles and shotguns under Penal Law 265.01.
Matter of Jermaine M., 188 AD2d 336, 337 (1st Dept 1992); People v. Padron, 118 AD2d 599 (2d Dept 1986); People ex rel. Walker v. Hammock, 78 AD2d 369 (4th Dept 1981); see also, People v. Walston, 147 Misc 2d 679 (Crim Ct, Kings County 1990).
Requiring proof of operability for the two offenses is reasonable because there is no functional difference between a handgun and a rifle or shotgun, and no reason to treat each differently in this respect for purposes of the criminal possession statutes.
Both are capable of inflicting serious injury or death only if operable and both are appropriately regulated under those circumstances.