[750 NYS2d 424]

#### The People of the State of New York, Respondent, v Andre Harris, Also Known as Supreme Allah, Appellant.

Supreme Court, Appellate Term, Second Department,

August 29, 2002

APPEARANCES OF COUNSEL

*Legal Aid Society,*New York City *(.Andrew C. Fine*and *Lorca Morello*of counsel), for appellant. *Charles J. Hynes, District Attorney,*Brooklyn *{Leonard Joblove*and *Monique Ferrell*of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

Judgment of conviction affirmed.

In this prosecution for possessing a loaded rifle in public within the City of New York, the People established that *488defendant’s possession of a loaded rifle in a locked trunk of a car parked on a street in the City of New York violated the provisions of section 10-131 (h) (1) of the Administrative Code of the City of New York. Our view is bolstered by our reading of section 10-131 (h) (2) of the Administrative Code, which permits the carrying of an *unloaded*rifle in a public place within a closed case. The inescapable conclusion is that the carrying of a *loaded*rifle in a public place within a similar closed container, such as the trunk of a car, is prohibited. It follows that despite the fact that a rifle is placed in a piece of luggage carried in the street or the trunk of a car parked on a city street, as in the instant case, it can still be considered to be in “public” for purposes of the subject provision, and the public nature thereof is not transformed merely by the fact that the container is closed and nontransparent.

Moreover, the legislative history of the section in question, in the report of the Committee on City Affairs, dated July 7, 1964, noted that a provision of the Conservation Law (now ECL 11-0931 [2], contained in title 9 of the Environmental Conservation Law, entitled “Hunting”) prohibited carrying a loaded rifle in a motor vehicle. The committee apparently was under the impression that such section would be construed as applying only to areas of hunting *(but see People v Russo,*38 Misc 2d 957) and, thus, adopted this provision to protect the citizens of New York City.

We also conclude that the charge permitted the jury to determine the applicable legal issues before it. We find no merit to the remaining contentions of defendant.

Patterson, J.,

dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum: The issue before this court is whether defendant violated section 10-131 (h) (1) of the Administrative Code of the City of New York which makes it unlawful to possess a loaded rifle in “public” within the City of New York. In charging the jury, the trial court, without any explanation, read from the provisions of section 10-125 (2) of the Administrative Code, which prohibits the consumption of alcohol on city streets and which defines what a “public place” would be. Under said definition, which was to be used only for that section, a “public place” includes the interior of a car parked on a street within the city limits.

*489Admittedly, the Administrative Code does not define what “public” means with regard to the possession of a loaded rifle. I find that the discussion of what is “public” in *People v McNamara*(78 NY2d 626, 628-630) is relevant to the issue at bar. Based on the rationale used by the Court of Appeals, I conclude that since the rifle was not visible inside the locked trunk of the car, notwithstanding the fact that it was parked on a city street, the People failed to establish that defendant’s possession was in “public.” Thus, the accusatory instrument should have been dismissed since the People failed to prove an element of the offense charged.

Pesce, P.J., and Golia, J., concur; Patterson, J., dissents in a separate memorandum opinion.