Appeal from an Order of the United States District Court for the Southern District of New York (Broderick, J.) Granting Fournier's Petition for a Writ of Habeas Corpus and Ordering Fournier's Release if Appellant Did Not Move the Indictment for Retrial within Sixty Days.
Feinberg, Chief Judge, and Van Graafeiland and Kearse, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
Appellant, the penal custodian of appellee, Joseph Fournier, appeals from an order of the United States District Court for the Southern District of New York (Broderick, J.), which conditionally granted appellee's section 2254 petition for a writ of habeas corpus because the State trial judge gave a Sandstrom charge on the issue of presumed intent. See Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). Pending appeal, the district court stayed that part of its order which directed Fournier's release if the State did not move the indictment for retrial within sixty days. We affirm in part and reverse in part.
On October 25, 1975, Joseph Fournier twice visited the Le Pastis restaurant in White Plains, New York. On the first visit, Fournier paid his bill with a stolen $50 traveler's check, which he endorsed with the name Harold Larson. On his second visit, he gave the bartender another stolen check, this one endorsed with the name Harold Dawson. When Fournier observed the bartender and the restaurant manager comparing the two checks, he ran from the restaurant.
The bartender ran after Fournier, while the manager went for the police. Soon, Officer Vincent Paterno replaced the bartender in the pursuit of Fournier. Paterno eventually chased Fournier into a parking lot, where he yelled to Fournier, who was about to climb a fence, "Police Officer, lay on the ground." Fournier turned and fired two shots. Paterno, unhurt, returned the fire and wounded Fournier in the leg. Fournier then was placed under arrest.
He was indicted and charged with attempted murder in the first degree, N.Y. Penal Law § 125.27, attempted assault in the first degree, id. § 120.10, criminal possession of a weapon in the second degree, id. § 265.03, and criminal possession of a weapon in the third degree, id. § 265.02. On July 26, 1977, following a jury trial in Westchester County Court, Fournier was convicted of criminal possession of a weapon in the second degree and attempted assault in the first degree.*fn1
Fournier, who testified, admitted the incidents at the restaurant and the resulting chase. However, he denied knowing that Paterno was a police officer and that he intended to hit Paterno when he fired his gun. Fournier testified that he had fired only to frighten his pursuer.
Q So you thought you were scaring a bartender; is that your testimony, Mr. Fournier?
A Someone, yes. (Tr. at 147)
Accordingly, although there was a dispute on the trial as to whether Fournier intended to hit his pursuer when he fired, it was undisputed that Fournier intended to frighten him. Fournier testified on both direct and cross that he intentionally fired his revolver with that end in mind. Despite this conceded fact, the district court, in a Memorandum Order dated October 12, 1983, vacated Fournier's conviction on both the criminal possession and attempted assault counts because the State trial court had instructed the jury that there was a rebuttable presumption that a person intends the natural and logical consequences of his acts. We conclude that, as to the criminal possession count, the writ should not have been granted.
Section 265.03 prohibits the possession of a loaded firearm "with intent to use the same unlawfully against another." This section and section 265.01 are the successors of former section 1897 of the Penal Law, which proscribed the carrying or possessing of a dagger, dirk, dangerous knife, razor, stiletto, imitation pistol, machine-gun, sawed off shot-gun, or any other dangerous or deadly instrument or weapon, "with intent to use the same unlawfully against another."*fn2 As is apparent from section 1897's inclusion of imitation pistols within the definition of weapon, the New York Legislature did not intend the phrase "use the same unlawfully against another" to encompass only such use as was intended to cause physical harm to another.
People v. Judiz, 38 N.Y.2d 529, 532, 381 N.Y.S.2d 467, 344 N.E.2d 399 (1976) (per curiam)
"A toy gun which would fool nobody is still illegal under the State law if used ...