In the Matter of RONNIE L.
A Person Alleged to be a Juvenile Delinquent, Respondent

Family Court,
New York County
121 Misc. 2d 271 (1983)



 The wisdom of making the strictures of the "plain English" law [n. 1] applicable to the Penal Law is graphically underscored by the way there arose this juvenile delinquency petition, which alleged that Respondent Ronnie L criminally possessed a loaded weapon. [n. 2]  The matter is one of unusual interest because it embodies a fact pattern which obviates the distinction between crimes of strict liability, and those requiring a culpable mental state.

    [p. 272] FACTS

 On the morning of February 3, 1982 Respondent was observed by Mr. Durmo with Gregory P, a non-student, on the first floor of Park West High School.  Since P was considered an intruder, both youths were taken to Mr. Jefferson's office in accordance with school security policy.  At that juncture, Respondent was wearing a black leather jacket, and Gregory P was wearing a maroon sheepskin coat.

 In Mr. Jefferson's office, confusion arose as to which boy owned which jacket.  Gregory P's mother advised Mr. Jefferson that Gregory owned a black leather jacket, and did not own a maroon sheepskin coat.  This fact was confirmed by Respondent's testimony that he and Gregory had switched jackets while on the fourth floor.

 While the youths were in his office, Mr. Jefferson first patted down Gregory P, and then patted down the Respondent about five minutes later.  Mr. Jefferson testified that as he patted down the Respondent, he felt a hard object, and asked the Respondent to remove whatever it was from his coat pocket.  Mr. Jefferson further testified that when he felt the hard object, and before he removed the object from Respondent's pocket, Respondent said "It's not mine, Mr. Jefferson."  The object which Respondent removed from his pocket was a holstered and loaded .22 caliber pistol.  Respondent's testimony differed in that he claimed that he did not discover that he had a gun until he was removing it from his jacket pocket and, out of surprise, said "It's not mine, Mr. Jefferson."


 Respondent claimed that the petition cannot be sustained because he was not in knowing possession of a loaded weapon.

 The court cannot accept this argument since the offense is one of strict liability.  However, even a strict liability offense must be the result of a voluntary act.  If that fact is not established by proof beyond a reasonable doubt the petition cannot be sustained.

 Penal Law section 15.10 contains the definition of strict liability.  It provides:

The minimal requirement for [p. 273] criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.  If such conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of "strict liability."  If a culpable mental state on the part of the actor is required with respect to every material element of an offense, such offense is one of "mental culpability."

 The concept of a voluntary act is central to this definition.  It is defined by Penal Law section 15.00, subd. 2 in the following manner:

"Voluntary act" means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.

 A crime of strict liability stands in contrast to one requiring a culpable mental state.

 The description of the latter is set forth in Penal Law 15.15 subd. 1 which provides:

1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally," "knowingly," "recklessly" or "criminal negligence, or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge.

 These culpable mental states are set out in Penal Law section 15.05.  We need only concern ourselves with the term "intentionally" which is defined as follows:

1. "Intentionally."  A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

 We face a conundrum when we attempt to draw a meaningful distinction between  "voluntary act" (P.L. section 15.00 subd. 2) and, acting "intentionally" (P.L. [p. 274] section 15.05 subd. 1) in the context of an offense whose gravamen is mere possession.

 In the first instance the law speaks of a voluntary act as one "consciously performed as a result of effort or determination."  It includes possession of property if the actor was aware of his physical possession, and had hold of it sufficiently long to terminate that possession.

 In the second the law speaks of acting intentionally "when one's conscious objective is to cause a result or engage in particular conduct."

 These definitions are substantially similar, and an appropriate amendment might be considered by the Legislature since an offense requiring a culpable mental state is ordinarily designated as such in the statute defining it.

 If this were done with respect to P.L. section 265.02 the Petitioner would be required to prove an additional material element by proof beyond reasonable doubt.

 On a strictly conceptual continuum there is no rational basis not to effectuate this change.  The same volitional processes are involved in the offense of possessing a firearm, a strict liability offense, as would be implicated if the statute were one of mental culpability and required that the firearm be possessed either "intentionally" or "knowingly".

 If conduct necessarily involves a culpable mental state--is there any reason not to expressly make it a material element of the offense?

 The problem has implications that go beyond the instant matter.  A reading of  P.L. section 15.15, subd. 2 [n. 4] suggests that the Legislature was troubled by [p. 275] the likelihood that situations would arise where the distinction between crimes of strict liability and those of culpable mental state would be largely illusory.  Unfortunately the wording of the statute is vague, the commission staff notes and comments are silent, and the Practice commentaries are less than helpful.

 Subdivision 2 is nowhere more enigmatic than where it states:  "A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability."  This phrase is difficult to reconcile with the strictures of subdivision 1 which propounds that the requirement of a particular mental state is ordinarily designated in the statute defining the offense by one of four terms.  Since strict liability must necessarily be indicated by omitting reference to a term of mental culpability the concept of "a clearly indicated legislative intent to impose strict liability" is a somewhat elusive one.

 Nonetheless the court concludes that there was a legislative intent to make P.L. section 265.02 subd. 4 a strict liability crime.  Article 265 of the Penal Law deals with firearms and other dangerous weapons.  Criminal possession of a weapon in the third degree (P.L. section 265.02), a class D felony, prohibits possession of a loaded firearm without regard to a culpable mental state.

 In contrast, criminal possession of a weapon in the second degree (P.L. section 265.03), a class C felony, requires that a person possess a loaded firearm with intent to use the same unlawfully against another.  It is the addition of a culpable mental state that distinguishes the two offenses, makes the latter a more serious one, and clearly establishes that the former (265.02 subd. 4) was clearly intended to be a strict liability offense.

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The court credits Mr. Jefferson's testimony, and concludes that respondent was aware that he possessed the gun before he started to remove it from his pocket. Respondent was wearing the coat in which the gun was found from the time he and P. exchanged coats on the fourth floor until it was removed approximately five minutes after they entered Mr. Jefferson's first floor office. Furthermore, respondent's statement to the effect that the gun was not his hardly qualifies as an exclamation of surprise. There was no testimony that it was accompanied by any manifestation of speech or behavior commonly associated with surprise, such as a sudden intake of breath, modulation of voice, or involuntary physical movement.

The court finds incredible respondent's seeming assertion that he was not aware that there was any sort of object in his pocket.

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Probation is ordered to conduct an investigation, prepare a report and be prepared to recommend an appropriate disposition . . . .