#### The People of the State of New York, Plaintiff, *v.*Eugene Charles, Defendant.

Court of Special Sessions of the City of New York,

January 9, 1958.

*Caroline Davidson*for defendant.

*Edward S. Silver, District Attorney (Lewis D. Cohen*of counsel), for plaintiff.

Benjamin Gtassman, J.

The defendant is charged in a four-count information with a violation of section 1897 of the Penal Law, in that on February 15, 1957, with intent to use the same unlawfully against a person whose name is unknown to the District Attorney, he carried and possessed a .32-caliber pellet gun, which is described as a dangerous and deadly weapon.

The testimony in this case discloses that the defendant had in his possession a pistol capable of discharging pellets. The police officer described the weapon as *“*an air pistol ”. No testimony was adduced to indicate that the defendant intended to use the pistol unlawfully against another person.

Section 1897 of the Penal Law provides that *“*A person who attempts to use against another an imitation pistol, or who carries, or possesses, any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, bludgeon, or who, *with intent to use the same unlawfully against another,*carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, imitation pistol, machine-gun, sawed off shot-gun, *or any other dangerous or deadly instrument, or weapon,”*is guilty of a misdemeanor. (Emphasis supplied.)

The first subdivision of section 1897, which is quoted above, thus specifies three distinct crimes, to wit: (1) an attempt to use certain weapons therein described against another; (2) carrying or possessing any such instruments or weapons; and (3) carrying or possessing, *with intent to use the same unlawfully against another,*a dagger, dirk, dangerous knife, razor, stilletto, imitation pistol, machine gun, sawed-off shotgun, or “ any other dangerous or deadly instrument, or weapon ’ ’. *(People*v. *Grass,*79 Misc. 457; *People*v. *Trudeau,*24 N. Y. S. 2d 34, 35.) A pellet gun or air pistol is not specifically included among the prohibited weapons in that section.

*182It has been held that an air pistol is not a *“*firearm ” within the meaning of section 1897 of the Penal Law. *(People*v. *Schmidt,*221 App. Div. 77.) A *“*firearm ” is described as any weapon from which a shot is discharged by force of an explosive, or a weapon which acts by force of gunpowder. *(People*v. *Evergood,*74 N. Y. S. 2d 12.)

We are therefore called upon to determine whether the defendant can be held on the charge of possessing a 1‘ dangerous or deadly instrument, or weapon ’ ’ within the meaning of the statute. In *People*v. *Admakiewicz*(298 N. Y. 176, 180) it was held that as to the items falling under the general provisions of *any other dangerous instrument or deadly weapon, “*therei must be proof of an intent to use the same unlawfully against another ”. While the pellet pistol in question might well be deemed a dangerous or deadly weapon, the People failed to present any proof of any intent by the defendant to use it unlawfully against another.

. Accordingly, defendant’s motion to dismiss the information should be granted and the defendant acquitted.

Cawse, P. J. and Troy, J. concur.

Information dismissed, etc.