Opn. No. ( 1977 )

HON. LAWRENCE T. KURLANDER Monroe County District Attorney

This is in response to your letter requesting an opinion from the Attorney General as to whether retail stores selling replicas of Civil War muzzle loading percussion pistols and ammunition to fire these pistols are required to be licensed. You further ask whether a purchaser must have a license to possess such a pistol and ammunition simultaneously.

Penal Law, § 265.01 provides, in pertinent part:

"A person is guilty of criminal possession of a weapon in the fourth degree when; (1) He possesses any firearm. * * *.

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"Criminal possession of a weapon in the fourth degree is a class A misdemeanor." (Emphasis supplied.)

Penal Law, § 265.02 provides, in pertinent part:

"A person is guilty of criminal possession of a weapon in the third degree when: * * * (4) He possesses any loaded firearm. Such possession shall not, except as provided in subdivision one, constitute a violation of this section if such possession takes place in such person's home or place of business.

"Criminal possession of a weapon in the third degree is a class D felony." (Emphasis supplied.)

Penal Law, § 265.10(4) provides:

"Any person who disposes of any of the weapons, instruments or appliances specified in subdivision one of Section 265.01 is guilty of a class A misdemeanor and he is guilty of a class D felony if he has previously been convicted of any crime." (Emphasis supplied.)

Penal Law, § 265.20 provides, in pertinent part:

"a. Sections 265.01, 265.02* * * 265.10 * * * shall not apply to:

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"3. Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00; * * *

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"10. Engaging in the business of gunsmith or dealer in firearms by a person to whom a valid license therefor has been issued pursuant to section 400.00."

Penal Law, § 265.00 provides, in pertinent part, the following definitions:

"e. `Firearm' means any pistol, [or] revolver * * * except an antique firearm.

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"6. `Dispose of' means to * * * keep for sale, offer, offer for sale, sell * * *

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"14. `Antique firearm' means: Any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.

"15. `loaded firearm' means any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm." (Emphasis supplied.)

Penal Law, § 400.00(2)(f) contains a licensing provision for differently defined antique pistols. In a prior opinion we held this section to have been impliedly repealed by the passage of Penal Law, § 265.00(14) (see 1975 Atty Gen [Inf Opn] 297).

Since the definition of "antique firearm" contains no reference to the age of the pistol, the replica muzzle loading percussion pistols to which you refer in your letter would fall within the statutory definition. We therefore conclude that a retail store may sell these unloaded pistols, and adult citizens of the State may purchase and possess these unloaded pistols without a license.

If the retail store also sells ammunition which may be used to discharge these pistols, under Penal Law, §§ 265.00(6) and (15) the pistols would lose their "unloaded" quality and the retail store would be violating Penal Law, § 265.10(4) unless it possessed a valid dealer in firearms license. Likewise, if the purchaser of such a pistol also has in his possession ammunition which may be used to discharge the pistol, the pistol would lose its "unloaded" quality and would no longer meet the statutory definition of an "antique firearm." Such a situation would be a violation of Penal Law, §§ 265.01(1) and 265.02(4) unless the purchaser had a license.

An anomolous situation can arise when a collector of "antique firearms" also collects muzzle loading rifles. These rifles may be loaded and shot without a license. However, in some cases the same ammunition may be used to load and shoot "antique firearms" and an otherwise law-abiding citizen may run afoul of the Penal Law due to the statutory definition of "loaded firearm." Cases such as these fall well within the prosecutorial discretion and a review of the facts would be necessary to determine whether or not a criminal prosecution would be appropriate.

Accordingly, we conclude that unloaded replica muzzle loading percussion pistols may be purchased, sold, and possessed without a license. Since these pistols are only exempt from license requirements when unloaded, a license is necessary to simultaneously offer for sale, sell, purchase, or possess these pistols with the necessary ammunition to discharge them.