PEOPLE v. WILSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Claude J. WILSON, Appellant.

Decided: December 31, 1998

Present:  DENMAN, P.J., HAYES, BALIO, BOEHM and FALLON, JJ. Daniel E. Seaman by Joseph Townsend, Public Defender's Office, Lockport, for Appellant. Matthew J. Murphy, III by Thomas Brandt, District Attorney's Office, Lockport, for Respondent.

Defendant's challenge to the jury instructions requires us to decide whether an unloaded shotgun may nonetheless be deemed “loaded” within Penal Law § 10.00(12), merely because the defendant in possession of the shotgun is simultaneously in possession of shells.   If we answer that question in the negative, we must determine whether an unloaded shotgun is a “deadly weapon” within the meaning of Penal Law § 10.00(12), and whether, under the circumstances presented, it is a “dangerous instrument” within the meaning of Penal Law § 10.00(13). We answer each of those questions in the negative and thus conclude that defendant's conviction of burglary in the first degree (Penal Law § 140.30[1] ) and attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[2], [3] ) should be set aside.

I.

Defendant was indicted for, among other crimes, burglary in the first degree (Penal Law § 140.30[1] [defendant or another participant was armed with a deadly weapon] and [3] [defendant or another participant used or threatened the immediate use of a dangerous instrument] );  attempted robbery in the first degree (Penal Law § 160.15[2] [deadly weapon] and [3] [dangerous instrument] );  and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03).   The burglary and attempted robbery counts each alleged that defendant or another participant possessed a Marlin 12-gauge shotgun;  one burglary and one attempted robbery count specifically alleged that the shotgun was “loaded”.

The indictment arose out of an incident that occurred at an apartment house in Niagara Falls.   Two accomplices testified that they entered the building with defendant in an attempt to rob a resident.   The accomplices testified that defendant carried a Marlin 12-gauge shotgun in a black plastic bag and carried shells for the gun in his pocket.   The intended victim testified that masked men in the hallway of the building tried to force open her apartment door.   She did not see a gun.

Responding to the scene, police officers observed defendant and the accomplices at the bottom of the stairs outside the building.   Defendant was carrying an object.   The suspects huddled and then dispersed, at which time the object was no longer visible.   The suspects were quickly taken into custody.   Police seized six 12-gauge shotgun shells and drugs from defendant's pockets.

After arresting defendant, police searched for the object that he had been carrying.   Wedged between the staircase and the building, where the men had huddled, police found a black plastic bag containing an unloaded Marlin 12-gauge shotgun.   The shotgun was later tested and found capable of firing the shells seized from defendant's person.

At the close of proof, defendant moved to dismiss one burglary count and one attempted robbery count on the ground that the unloaded shotgun was not a “deadly weapon”.   Defendant also moved to dismiss the other burglary count and other attempted robbery count on the ground that the unloaded shotgun was not, under the circumstances, a “dangerous instrument”.   County Court denied the motions, although the People later consented to dismissal of the charge of first degree burglary under Penal Law § 140.30(3) (dangerous instrument).

In charging the jury on first degree burglary under Penal Law § 140.30(1) and first degree attempted robbery under Penal Law § 160.15(2), the court read the definition of “deadly weapon” set forth in Penal Law § 10.00(12), i.e., “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged.”   In addition, the court read the more expansive definition of “loaded firearm” set forth in Penal Law § 265.00(15), i.e., “any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.”   The court invited the jury to use that definition of “loaded firearm” in determining whether defendant possessed a “deadly weapon”, i.e., a “loaded weapon”, as defined by Penal Law § 10.00(12).   Defendant objected to that instruction.

Defendant was found guilty of first degree burglary under Penal Law § 140.30(1) and attempted first degree robbery under Penal Law § 160.15(2) (possession of a “deadly”, i.e., “loaded,” weapon) and attempted first degree robbery under Penal Law § 160.15(3) (possession of a “dangerous instrument”).   Defendant additionally was found guilty of criminal possession of a controlled substance in the seventh degree.   Defendant was sentenced as a second felony offender to concurrent terms of incarceration of 121/212 to 25 years for first degree burglary, 71/212 to 15 years for attempted first degree robbery, and one year for criminal possession of a controlled substance.

II.

 The court erred in charging the jury on the “deadly weapon” element of first degree burglary and attempted first degree robbery (see, Penal Law § 140.30[1];  § 160.15[2] ).  The court improperly borrowed the definition of “loaded firearm” from Penal Law § 265.00(15) and engrafted it onto the Penal Law § 10.00(12) definition of “deadly weapon”.   In so doing, the court rewrote the Penal Law, misdefined what constitutes a “loaded weapon” (see, Penal Law § 10.00[12] ) and erroneously allowed the jury to find that the shotgun was “loaded”, i.e., “deadly” (Penal Law § 10.00[12] ), even if not actually “loaded” with live ammunition, so long as defendant simultaneously possessed ammunition for the weapon.

 Defendant was not charged with possessing a “loaded firearm” as defined by Penal Law § 265.00(3) and (15), nor was he charged with violating any provision of Penal Law article 265.   The shotgun defendant possessed was not under the specified length, and thus was not a “firearm” within the meaning of that article (see, Penal Law § 265.00[3] ).  The charges against defendant required proof that defendant or another participant possessed a “deadly weapon”, not a “loaded firearm” (see, Penal Law § 10.00[12];  § 140.30[1];  § 160.15[2] ).  “Deadly weapon” is defined by Penal Law § 10.00(12) for the purpose of delineating various crimes and affirmative defenses set forth throughout the Penal Law (see, e.g., Penal Law § 120.00 [3];  § 120.05[2], [4];  § 120.10[1];  §§ 120.11, 120.14[1];  § 125.25[3] [b];  § 140.17[1];  § 140.25[1][a];  § 215.51[b][i];  § 265.01[5];  § 265.08 [1];  § 265.09[1][a] ).   In contrast, the definition of “loaded firearm” in Penal Law § 265.00(15) has a much more limited function, pertaining only to crimes contained in Penal Law article 265 (see, Penal Law § 265.02 [4];  §§ 265.03, 265.35[2];  see also, Penal Law § 140.17[2], which, although not expressly incorporating Penal Law § 265.00[15], conveys a similarly enlarged definition of when a firearm is “loaded” for the limited purpose of determining criminal liability under that subsection).   The structure of the Penal Law thus confirms that the concepts of “deadly weapon” and “loaded firearm” do not overlap and were intended to serve discrete functions (see, People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081, in which the Court charted the distinction between those elements).

The court's charge improperly enlarged the definition of “deadly weapon”.   Under Penal Law § 10.00(12), “deadly weapon” includes a gun, provided that it is a “loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged”.   Courts that have addressed that section have implied that, in order to be a “deadly weapon”, a gun must actually be “loaded”, as that term is commonly understood (see, People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823, modfg. 105 A.D.2d 863, 482 N.Y.S.2d 364;  People v. Hilton, 187 A.D.2d 608, 609, 590 N.Y.S.2d 106, lv. denied 81 N.Y.2d 887, 597 N.Y.S.2d 948, 613 N.E.2d 980;  People v. Lind, 173 A.D.2d 179, 183-184, 569 N.Y.S.2d 416, affd. in part, revd. in part on other grounds 79 N.Y.2d 722, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563;  People v. Johnson, 169 A.D.2d 498, 500, 564 N.Y.S.2d 366, lv. denied 77 N.Y.2d 962, 570 N.Y.S.2d 496, 573 N.E.2d 584;  People v. Robertson, 162 A.D.2d 953, 954, 557 N.Y.S.2d 182, lv. denied 76 N.Y.2d 863, 560 N.Y.S.2d 1003, 561 N.E.2d 903;  People v. Kilpatrick, 143 A.D.2d 1, 531 N.Y.S.2d 262, criticized on other grounds in People v. Gray, 86 N.Y.2d 10, 19-20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Shaffer, 130 A.D.2d 949, 950, 516 N.Y.S.2d 373, lv. denied 70 N.Y.2d 717, 519 N.Y.S.2d 1053, 513 N.E.2d 1321;  People v. Amato, 99 A.D.2d 495, 496, 470 N.Y.S.2d 441;   People v. Elfe, 37 A.D.2d 208, 211, 323 N.Y.S.2d 114;  People v. Howard, 37 A.D.2d 178, 179, 323 N.Y.S.2d 119;  People v. Madehere, 149 Misc.2d 564, 567, 565 N.Y.S.2d 984;  People v. Tracey A., 97 Misc.2d 1053, 1055-1056, 413 N.Y.S.2d 92;  but see, People v. Lay, 39 A.D.2d 904, 905, 334 N.Y.S.2d 398).

 No other construction is possible given the statute's requirement that the gun be one “from which a shot *** may be discharged” (Penal Law § 10.00 [12] ).  Only if a gun is actually “loaded” is it one “from which a shot *** may be discharged” (Penal Law § 10.00[12] ).  We thus disagree with the People's argument that the Legislature meant “may be discharged” in the hypothetical sense, rather than in the sense of the gun's immediate capability.   Self-evidently, the concept of “loaded” in Penal Law § 10.00(12) is narrower than the concept of “loaded” in Penal Law § 265.00(15).

People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823, modfg. 105 A.D.2d 863, 482 N.Y.S.2d 364, supra, is instructive.   There defendant, a fleeing burglar, was apprehended wearing an empty holster;  along the escape route police found a revolver containing four bullets and one spent casing.   In a statement, defendant admitted that he pulled the trigger four times in an attempt to shoot a pursuing officer, and that the gun misfired each time.   Defendant contended that the evidence was insufficient to establish that he possessed a “deadly weapon”.   The Third Department rejected defendant's contention, but the Court of Appeals concluded:

“The People failed to establish that the gun found at the scene was a ‘deadly weapon’ (Penal Law § 10.00[12] )-that is, both operable and loaded with live ammunition-a necessary element [of] *** the crimes of which defendant was convicted”

(People v. Shaffer, supra, 66 N.Y.2d, at 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 [emphasis supplied] ). In modifying defendant's conviction, the Court implicitly agreed with the premise of both the majority and concurrence-dissent at the Appellate Division that the People were required to prove that the gun “contained live ammunition” (People v. Shaffer, supra, 105 A.D.2d, at 864, 866, 482 N.Y.S.2d 364 [emphasis supplied] ).

A prior decision of this Court is likewise instructive.   In People v. Shaffer, supra, 130 A.D.2d, at 950, 516 N.Y.S.2d 373, we held that a “gun is loaded *** despite the absence of a shell from the chamber if there is ammunition in the clip or magazine *** and by manual manipulation a shot can be discharged”.   We further noted, “When the gun was seized, there was ammunition in a barrel and in the magazine, and test firings revealed that the gun was operable by manual manipulation” (People v. Shaffer, supra, 130 A.D.2d, at 950, 516 N.Y.S.2d 373).   Although the “manual manipulation” test goes primarily to whether the weapon is “operable”, not whether it is “loaded”, we note that a shot can be discharged by “manual manipulation” only if the gun is actually “loaded” with live ammunition.  Shaffer cites People v. Elfe, supra, and People v. Howard, supra, both of which held a revolver to be a “deadly weapon” where it contained live ammunition in the cylinder.

 The thrust of the foregoing cases is that the gun must actually be “loaded” in order to constitute a “deadly weapon” (see, People v. Shaffer, supra, 66 N.Y.2d, at 664, 495 N.Y.S.2d 965, 486 N.E.2d 823;  People v. Amato, supra, 99 A.D.2d, at 496, 470 N.Y.S.2d 441).   The practice commentary reaches the same conclusion (see, Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 10.00, at 23 [“(I)t is crucial under this definition that there be proof that the firearm was loaded with operable ammunition”] ).   Apart from the aforementioned case of People v. Lay, supra, which we regard as an anomaly, no case reaches a contrary result, either by citing Penal Law § 265.00(15) or by otherwise relying on a more expansive definition of “loaded”.   There is thus little support for the People's contention that an unloaded gun may be considered a “loaded” “deadly weapon” merely because the person possessing it also possesses ammunition (see, People v. Tracey A., supra, 97 Misc.2d, at 1055-1056, 413 N.Y.S.2d 92).

Penal statutes “must be construed according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law § 5.00).  While a penal statute need not be strictly construed (see, Penal Law § 5.00), there is no authority for expanding a penal statute by freely importing concepts from other statutes.   The court thus erred in engrafting the definition of “loaded firearm” (Penal Law § 265.00[15] ) onto the definition of “deadly weapon” (Penal Law § 10.00[12] ).  Because of the erroneous instruction concerning the aggravating element, the conviction of first degree burglary under Penal Law § 140.30(1) and first degree attempted robbery under Penal Law § 160.15(2) should be set aside.   Nevertheless, because the erroneous charge related only to the aggravating element, and further because the evidence is insufficient to establish that element (see, point III, infra), a reduction of the conviction rather than a reversal and a new trial is the appropriate remedy.

III.

The evidence is legally insufficient to support the conviction of first degree burglary under Penal Law § 140.30(1) and attempted first degree robbery under Penal Law § 160.15(2).   The People were required to prove that defendant or another participant possessed a “deadly weapon”, meaning a “loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged” (Penal Law § 10.00[12] ).  In referring to a “loaded weapon”, the statute requires proof that the weapon actually be “loaded”, i.e., that it actually contain live ammunition (see, People v. Shaffer, supra, 66 N.Y.2d, at 664, 495 N.Y.S.2d 965, 486 N.E.2d 823, modfg. 105 A.D.2d 863, 864, 482 N.Y.S.2d 364;  People v. Shaffer, 130 A.D.2d 949, 950, 516 N.Y.S.2d 373, supra;  People v. Elfe, supra, 37 A.D.2d, at 211, 323 N.Y.S.2d 114;  People v. Howard, supra, 37 A.D.2d, at 179, 323 N.Y.S.2d 119;  People v. Tracey A., supra, 97 Misc.2d, at 1055-1056, 413 N.Y.S.2d 92).   Absent proof that the shotgun contained ammunition, it was not a “loaded,” i.e., “deadly”, weapon (Penal Law § 10.00[12] ).  Because the proof is insufficient to establish the aggravating element, the judgment should be modified by reducing the conviction of first degree burglary to second degree burglary under Penal Law § 140.25(2) (see, CPL 470.15[2][a];  People v. Shaffer, supra, 66 N.Y.2d, at 664, 495 N.Y.S.2d 965, 486 N.E.2d 823).   Similarly, the conviction of attempted first degree robbery under Penal Law § 160.15(2) should be reduced to attempted third degree robbery under Penal Law § 160.05 (see, People v. Kilpatrick, supra, 143 A.D.2d, at 1, 531 N.Y.S.2d 262;  People v. Amato, supra, 99 A.D.2d, at 496, 470 N.Y.S.2d 441;  People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145).

IV.

 The evidence also is legally insufficient to support the conviction of attempted first degree robbery under Penal Law § 160.15(3).  At trial, defendant moved to dismiss that count for lack of proof of possession of a “dangerous instrument”, because the shotgun was not loaded.   Although defendant's brief does not challenge the conviction on that basis, we nonetheless reach the issue as a matter of discretion in the interest of justice (see, CPL 470.15[3][c];  [6][a] ).

 Four Judges of the Court of Appeals have labeled it an “open question in [that Court] *** whether a gun would have to be loaded and operable to be considered a dangerous instrument” under Penal Law § 10.00(13) (People v. Lopez, 73 N.Y.2d 214, 221, n. 1, 538 N.Y.S.2d 788, 535 N.E.2d 1328).   Whether an object is a “dangerous instrument” depends on the circumstances under which it is used, attempted to be used or threatened to be used (see, Penal Law § 10.00[13];  People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30;  People v. Castaldo, 72 A.D.2d 568, 420 N.Y.S.2d 742).   The cases generally hold that, under ordinary circumstances, lack of proof that a gun was loaded will render the evidence insufficient to establish that it is a “dangerous instrument” (see, Matter of Angel Q., 194 A.D.2d 793, 599 N.Y.S.2d 624;  People v. Hilton, 145 A.D.2d 352, 353-354, 535 N.Y.S.2d 708;  People v. Colavito, 126 A.D.2d 554, 510 N.Y.S.2d 678, affd. 70 N.Y.2d 996, 526 N.Y.S.2d 432, 521 N.E.2d 439;  People v. Seabrooks, 120 A.D.2d 691, 502 N.Y.S.2d 4;  People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31;  People v. Bonefont, 84 A.D.2d 844, 444 N.Y.S.2d 173;  People v Castaldo, supra;  People v. Holmes, 71 A.D.2d 904, 419 N.Y.S.2d 614, affd. 52 N.Y.2d 976, 438 N.Y.S.2d 284, 420 N.E.2d 82;  People v. Johnson, 64 A.D.2d 907, 911, 408 N.Y.S.2d 519, affd. for reasons stated 48 N.Y.2d 674, 421 N.Y.S.2d 881, 397 N.E.2d 392;  People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894;  People v. Fwilo, 47 A.D.2d 727, 727-728, 365 N.Y.S.2d 194;  People v. Iglesias, 40 A.D.2d 778, 778-779, 337 N.Y.S.2d 740;  but see, People v. Lay, supra, 39 A.D.2d, at 905, 334 N.Y.S.2d 398 [dictum] ).   The result might be different if defendant used, attempted to use, or threatened to use the gun as a club (see, People v. Colavito, supra, 126 A.D.2d, at 555, 510 N.Y.S.2d 678;  People v Castaldo, supra;  People v. Madehere, supra, 149 Misc.2d, at 566, 565 N.Y.S.2d 984;  cf., People v. Hilton, supra, 187 A.D.2d, at 609, 590 N.Y.S.2d 106).   There is no such proof on this record, however.   Under the circumstances of use or attempted use presented by this case, the unloaded gun is not an “instrument *** which *** is readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13];  see, People v. Hilton, supra, 145 A.D.2d, at 354, 535 N.Y.S.2d 708;  People v. Castaldo, supra ).  Because the proof is insufficient to establish the aggravating element, the judgment should be further modified by reducing the conviction of attempted first degree robbery under Penal Law § 160.15(3) to attempted third degree robbery under Penal Law § 160.05 (see, CPL 470.15[2] [a];  People v. Early, supra ).

V.

 Defendant's remaining contentions lack merit.   By failing to object to the asserted lack of corroborative evidence and by failing to move to dismiss on that ground, defendant has failed to preserve his contention for our review (see, People v. Gray, 86 N.Y.2d 10, 18-22, 629 N.Y.S.2d 173, 652 N.E.2d 919, supra;  People v. Cona, 49 N.Y.2d 26, 33, 424 N.Y.S.2d 146, 399 N.E.2d 1167).   In any event, the corroborative evidence need only “tend[ ] to connect” defendant with the commission of the offense (CPL 60.22 [1] ) and need not establish all the elements thereof (see, People v. Breland, 83 N.Y.2d 286, 293, 609 N.Y.S.2d 571, 631 N.E.2d 577;  People v. Steinberg, 79 N.Y.2d 673, 683, 584 N.Y.S.2d 770, 595 N.E.2d 845).   The People were thus not required to present nonaccomplice proof corroborating that defendant personally entered the building and personally possessed the shotgun.

In view of our determination, we need not address defendant's challenge to the sentence.

Accordingly, the judgment should be modified by reducing the conviction of first degree burglary to second degree burglary, reducing the conviction of both counts of first degree attempted robbery to third degree attempted robbery and vacating the sentences imposed thereon, and the matter should be remitted to Niagara County Court to sentence defendant accordingly.

Judgment unanimously modified on the law and as a matter of discretion in the interest of justice and as modified affirmed and matter remitted to Niagara County Court for sentencing.

DENMAN, P.J.: