PEOPLE v. WEINSTEIN

Appeal from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting appellant, after trial, of violating section 436-5.0 of the Administrative Code of the City of New York, and sentencing him to serve 30 days, execution of the sentence being suspended. Judgment affirmed. ( People v. Klufus, 1 Misc.2d 828, affd. 2 A.D.2d 958. )

Wenzel, Beldock, Murphy and Hallinan, JJ., concur; Nolan, P.J., dissents and votes to reverse the judgment and to dismiss the information, with the following memorandum:

Section 436-5.0 of the Administrative Code does not forbid the sale of toy or imitation pistols which are merely similar in appearance to actual pistols or revolvers. It prohibits the sale of such toys or imitations only if they substantially duplicate actual pistols or revolvers, and then only if they are of specified colors. There appears to be merit to appellant's contention that the law, insofar as it employs the term "substantially duplicates" is too indefinite for enforcement (see Connally v. General Constr. Co., 269 U.S. 385; Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 696, and cases there cited). That question, however, need not be decided. There is no evidence in this record that the articles sold by appellant duplicated (as that word is generally understood) any part of a real pistol or revolver, nor is such duplication apparent on inspection. They differ from actual pistols or revolvers in so many material respects not only in construction, but also in appearance that it is apparent that they are toy cap pistols, the sale of which is permitted by section 1894-a of the Penal Law, and may not be prohibited by local legislation.