Opinion
Argued September 10, 1997
Decided October 21, 1997
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered October 28, 1996, which modified, on the law, and, as modified, affirmed an order of the Family Court, Kings County (Maureen McLeod, J.), adjudging respondent to be a juvenile delinquent and placing him with the Division for Youth for a period not to exceed 18 months, entered upon a fact-finding order of said court (Maureen McLeod, J.), finding that respondent had committed acts which, if committed by an adult, would have constituted the crimes of attempted criminal possession of a weapon in the second degree, attempted criminal possession of a weapon in the third degree (two counts), attempted criminal possession of a weapon in the fourth degree (two counts), and unlawful possession of weapons by persons under 16. The modification consisted of adding to the order of disposition a provision vacating the provision of the fact-finding order that respondent had committed an act which constituted unlawful possession of weapons by persons under 16, and dismissing that count of the petition.
The nonhearsay allegations in the petition set forth that the respondent was observed by a police officer on a public street, holding a .25 caliber automatic gun in his hand, that the gun had been defaced, and that it contained ammunition.
The Appellate Division concluded that although the ballistics report annexed to the petition stated that the firearm was inoperable, and did not indicate that the ammunition was live, the nonhearsay allegations in the petition constituted sufficient evidence, if unexplained or uncontradicted, to support the finding that the respondent committed an act which, if committed by an adult, would have constituted the five counts of attempted criminal possession of a weapon charged in the petition; but that since there was no indication in the petition that the ammunition was live, the petition was insufficient with respect to the count charging the respondent with unlawful possession of weapons by persons under 16 based upon his possession of ammunition.
Matter of Lavar D., 232 A.D.2d 634, affirmed.
Valerie Pels, New York City, Carol Goldstein and Jane M. Spinak for appellant.
Paul A. Crotty, Corporation Counsel of New York City ( Elizabeth I. Freedman and Francis F. Caputo of counsel), for respondent presentment agency.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs.
Respondent was charged with and found to have committed acts which, if committed by an adult, would constitute the crimes of attempted second degree criminal possession of a weapon (Penal Law § 265.03), attempted third degree criminal possession of a weapon (Penal Law § 265.02) (two counts), attempted fourth degree criminal possession of a weapon (Penal Law § 265.01) (two counts) and unlawful possession of a weapon by a person under 16 (Penal Law § 265.05). The charges arise out of an incident in which respondent was seen on a public street holding a firearm that later proved to be loaded but inoperable.
Both respondent and the presentment agency have proceeded from the outset on the assumption that the counts charging respondent with acts constituting attempt crimes required proof that he specifically intended to possess a firearm that was operable. The allegations that respondent carried a weapon on a public street and that that weapon was loaded are sufficient to support the inference that respondent believed and intended the firearm to be operable.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed, without costs, in a memorandum.