Is Operability of a Firearm Including a Pellet Gun a Must for Conviction for Criminal Possession of a Weapon ?
In People v. Aponte (249 AD2d 553 [2d Dept 1998]), the Court focused on operability of the firearm as being the essential element of criminal possession of a weapon in the second degree.
The lower court failed to charge the jury on the element of operability.
Accordingly, the defendant's conviction for criminal possession of a weapon in the second degree was vacated and that count of the indictment dismissed. (See, People v. Jones, 233 AD2d 342 [2d Dept 1996]; People v. Hechavarria, 158 AD2d 423 [1st Dept 1990]; People v. Alvarez, 96 AD2d 864 [2d Dept 1983].)
A pellet gun must likewise be proven operable. (People v. Laureno, 163 Misc 2d 873 [Crim Ct, Kings County 1995], supra.)
Defendant was charged with, inter alia, Penal Law 265.01 (2) and moved to dismiss the information alleging that the weapons charge has not been properly corroborated by a ballistics report within the time constraints of CPL 30.30, and in the interest of justice.
On August 29, 1994, Police Officer Quinn, in response to a radio run, arrived at the scene of the crime and was met by the building superintendent who escorted him to an apartment where a dispute was allegedly in progress.
Upon a request to open the door to the apartment, the defendant waved a pellet gun in his hand. Defendant was then arrested, and the pellet gun was recovered.
In People v. Laureno, 163 Misc 2d 873 [Crim Ct, Kings County 1995], the defendant sought dismissal of the information alleging that no ballistics report was ever submitted by the People to prove that the pellet gun was operable.
Defendant argued that since 90 days had elapsed since the filing of the complaint against him, the complaint was never converted into an information and is, therefore, facially insufficient. (See, People v. Harvin, 126 Misc 2d 775 [Crim Ct, Bronx County 1984].)
In People v. Williams (113 Misc 2d 595 [Crim Ct, NY County 1982], the court held that an altered, yet inoperable, starter pistol was an imitation pistol.
However, the Laureno court held that the People's reliance on Williams was misplaced.
A pellet gun, unlike an imitation pistol, is a dangerous weapon which can cause serious physical injury to an individual, whereas an imitation pistol is not so categorized.
Since a pellet gun is capable of causing serious injury or harm to another, it is clearly a dangerous or deadly weapon.
Furthermore, the fact that the defendant had the pellet gun drawn at the police officer is sufficient to establish the intent element of the statute.