By petition filed pursuant to Family Court Act §310.1 on December 12, 2012 the

respondent is alleged to have committed an act in violation of New York City Administrative

Code §10-131 (g), which is an unclassified misdemeanor (NYC Administrative Code §10-131

[g] [4]; Penal Law §55.10 [2] [c]).

This case was transferred to this Court for purposes of a fact-finding hearing and during

a conference with counsel, the Court questioned whether the juvenile delinquency petition was

jurisdictionally sufficient (see, Fam. Ct. Act §311.2 ). The parties were invited to provide the

Court with memoranda of law relating to the issue, and while the Court was considering the

parties' submissions the respondent absconded from a non-secure "Close to Home" facility with

which he was placed on an unrelated juvenile delinquency proceeding. The Court held the issue

in abeyance during the period of respondent's voluntary absence, and he was returned to Court [*2]

on April 3, 2013, after a warrant had been issued by the Administration for Children's Services.

The juvenile delinquency petition alleges that on December 27, 2012 in the County of

Queens, the respondent "sold or offered for sale, possessed or used or attempted to use or give

away, a toy or imitation firearm which substantially duplicated or could reasonably be perceived

to be an actual firearm." Two supporting depositions and a Laboratory Report prepared by

the New York City Police Department Laboratory's Firearms Analysis Section are appended to

the petition.

The supporting deposition by New York City Police Detective Mike Failla, who is

assigned to the 113th Precinct in Queens County, states in pertinent part, that at 1:00 P.M. on

December 27, 2012 in the "[v]icinity of 115-34 199th Street",

I observed the respondent to be holding what appeared to me to be a firearm, based

on my training and experience as a New York City Police Officer. The respondent

dropped what appeared to be a firearm to the ground and I recovered it from the

ground and I later placed it on the hood of a police vehicle and I observed Police

Officer Wagner recover it from the hood.

The supporting deposition by New York City Police Officer Adam Wagner, who is also

assigned to the 113th Precinct in Queens County, states in pertinent part, that at 1:00 P.M. on

December 27, 2012, in the "[v]icinity of 115-34 199th Street

in the presence of Detective Failla, I recovered from a police vehicle what appeared

to me to be a firearm, based on my training and experience as a New York City

Police Officer. The firearm was black in color and non transparent. The barrel of it

was open and it resembled a real firearm. It did not have a mark or brand by which

the manufacturer could be readily identified. It did not have a laser pointer

attached to it. Upon closer inspection, I observed that it appeared to be powered by

spring and it looked like a Glock [Model] 26. I subsequently vouchered the above-

mentioned property . . . [r]espondent admitted to me that he is fourteen years old

and that his date of birth is October 30, 1998. His appearance seemed to be

consistent with his age of fourteen.

The Laboratory Report prepared by New York City Police Detective Dominick [*3]

Cappiello, who is assigned to the Police Department Laboratory's Firearms Analysis Section,

states that on December 28, 2012 he received the items recovered from the respondent and

vouchered by Police Officer Wagner, and that upon his analysis and testing, the items are

an "Air Pistol, 6MM BB Caliber, unknown make, Glock Type, NYPD Lead Serial Number

565264", and a 6MM BB magazine having a capacity of 15 BBs. Additionally, Detective

Cappiello's report states that the 6 millimeter BB gun was "inoperable, due to broken slide

assembly" and that "the above is not capable of firing a live cartridge and therefore is not a

firearm."

Following his first appearance before this Court, the issue of whether the petition was

jurisdictionally sufficient or whether dismissal of the petition was required was raised and

addressed by both the Presentment Agency and the attorney for the respondent. While the

Presentment Agency maintains that its petition is jurisdictionally sufficient, respondent contends

that the petition should be dismissed because the non-hearsay factual allegations of the petition

and the three supporting depositions do not establish a prima facie case of a violation of

Administrative Code §10-131 (g), the sole crime charged in the petition.

Specifically, respondent argues that the item allegedly recovered from his person by the

police was an "inoperable BB gun" and not an imitation pistol, the possession of which is

prohibited by Administrative Code §10-131 (g). While the Presentment Agency does not contest

the assertion that the item seized by the police is an inoperable BB gun, it argues that the

possession of an inoperable BB gun violates the city ordinance prohibiting the possession of

imitation pistols. [*4]

Having considered the arguments of counsel and written memoranda submitted upon this

issue, the Court agrees with the Presentment Agency, and finds that this juvenile delinquency

petition is facially sufficient with respect to its sole charge.

The respondent is charged with the possession of an imitation pistol, in violation of NYC

Administrative Code §10-131 (g). That portion of the Administrative Code provides, in relevant

portion, that:

(g) (1) It shall be unlawful for any person to sell or offer for sell,^[FN1] possess or use

or attempt to use or give away, any toy or imitation firearm which substantially

duplicates or can reasonably be perceived to be an actual firearm unless:

(a) the entire exterior surface of such toy or imitation firearm is colored white,

bright red, bright orange, bright yellow, bright green, bright blue, bright pink or

bright purple, either singly or as the predominant color in combination with other

colors in any pattern; or

(b) such toy or imitation firearm is constructed entirely or transparent or

translucent materials which permits unmistakable observation of the imitation

or toy firearm's complete contents; and

(c) the barrel of such toy or imitation firearm, other than the barrel of any such

toy or imitation firearm that is a water gun, is closed with the same material of

which the toy or imitation firearm is made for a distance of not less than one-

half inch from the front end of such barrel, and;

(d) such toy or imitation firearm has legibly stamped thereon, the name of the

manufacturer or some trade name, mark or brand by which the manufacturer

can be readily identified; and

(e) such toy or imitation firearm does not have attached thereto a laser pointer,

as defined in paragraph one of subdivision a of section 10-134.2 of this code.

The supporting depositions of the police detectives and the police officer state that the

BB gun recovered from the respondent substantially duplicated and appeared to be an actual [*5]

firearm, specifically a Glock Model 26 pistol. While an actual pistol or revolver which is

inoperable does not constitute a toy or imitation pistol in violation of Administrative Code §10-

131 (b) or (g) (Matter of Michael R., 61 NY2d 316, 320 [1984])^[FN2], it does not follow that an

inoperable air pistol cannot constitute an imitation firearm, as the ordinance is directed to the

appearance of the item as an actual firearm rather than its functionality (Michael R. at 320

[starter's pistol]; Matter of Kareem McL., 276 AD2d 632, 633 [2000] [toy gun]; Matter of

Timothy L., 29 AD3d 492, 493 [2006]; People v. Johnson, 38 Misc 3d 1223[A]; 2013 NY Slip Op

50242[U]).^[FN3]

The provisions of Administrative Code §10-131 (b) and §10-131 (g) are not mutually

exclusive, and the possession of an operable air pistol, can simultaneously constitute a violation

of both provisions of the ordinance where, for example, the air pistol is operable and it also

"substantially duplicates or can reasonably be perceived to be an actual firearm" (Administrative

Code §10-131 [g] [1]; e.g., People v. Vargas, 29 Misc 3d 1209[A]; 2010 NY Slip Op 51759[U]).

While the respondent is not charged with possession of an air pistol in this case as the BB gun [*6]

recovered by the police is inoperable,^[FN4] he may still be charged with possession of an imitation

pistol provided that the air pistol/BB gun "substantially duplicates or can reasonably be perceived

to be an actual firearm" (NYC Administrative Code §10-131 [g] [1]; see, People v. Wilson, 283

AD2d 339, 340 [2001], lv denied 97 NY2d 644 [2001]; Matter of Akeem B., 295 AD2d 175, 176

[2002]; People v. Perez, 93 AD3d 1032, 1038, fn 2 [2012], lvs denied 19 NY3d 1000 [2012];

People v. Depaul, 101 AD3d 1735 [2012]).

Therefore, upon review of the petition and the supporting depositions, and having

considered the arguments of counsel, this Court finds that the petition contains non-hearsay

allegations that establish, if true, every element of the crime charged and the respondent's

commission thereof (Matter of Detrece H., 78 NY2d 107, 109 [1991]; Mater of Jahron S., 79

NY2d 632, 635-636 [1992]; Matter of Neftali D.,85 NY2d 631, 635-636 [1995]; Matter of Angel

A., 92 NY2d 430, 433 [1998]; Matter of Divine D., 79 AD3d 940, 941 [2010]; Matter of Michael

Grudge M., 80 AD3d 614 [2011]; Matter of Dhakeim C., 97 AD3d 675, 676-677 [2012]).

It is therefore

ORDERED, that respondent's motion to dismiss the petition pursuant to Family Court

Act §315.1 is hereby denied.

This constitutes the decision and order of the Court.

E N T E R: [*7]

________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

April 5, 2013