69 N.Y.2d 382, 515 N.Y.S.2d 212, 507 N.E.2d 1068
Defendant Marrero was a Federal corrections officer employed at a facility in Danbury, Connecticut.1 In 1977 he was arrested inside a Manhattan social club while carrying a loaded .38 caliber automatic pistol.2 At the time of arrest he asserted his Federal corrections officer status and maintained that he was authorized to carry the weapon without a permit.3
Marrero claimed that his belief rested on interpretations supplied by fellow officers and teachers together with the wording of the peace officer statutes themselves.4 The case had already moved through several procedural stages before trial.5 Marrero's pretrial motion to dismiss the indictment was granted at 94 Misc 2d 367.6 The Appellate Division reversed that order and reinstated the indictment by a divided vote at 71 AD2d 346.7 Marrero's subsequent appeal from the Appellate Division order lapsed and was dismissed.8
At trial Marrero sought to present evidence that his personal misunderstanding of the statutory definition of a peace officer excused his conduct.9 The trial court rejected the proffered defense, refused to charge the jury on the issue, and the jury returned a verdict convicting him of criminal possession of a weapon in the third degree.10 The Appellate Division affirmed the conviction.11
Whether the defense of mistake of law under Penal Law § 15.20(2)(a) is available when a defendant's mistaken belief that his conduct was lawful rested on his own interpretation of a statute?12
Penal Law § 15.20(2)(a) provides that a person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in a statute or other enactment, and the statute must in fact have authorized the conduct or been later determined invalid.13
No. Defendant Marrero's belief that he was exempt as a peace officer was based on his own interpretation of the interplay between CPL 2.10, 1.20 and Penal Law § 265.20, but the statute never in fact authorized his conduct as a Federal corrections officer from Connecticut, and the Appellate Division had already determined that he was not a peace officer exempt from the licensing requirement.14
The mistake of law defense under subdivision (2)(a) is not available to Marrero.15
Related opinions on this issue
Joined by Judges Kaye And Alexander
Judge Hancock dissents from the majority's holding.16 He contends that the plain wording of Penal Law § 15.20(2)(a) permits a mistake of law defense whenever a defendant's mistaken belief is founded upon an official statement of the law contained in a statute.17 The majority's narrow construction rejects the legislative purpose of abandoning the strict common-law rule in favor of allowing a limited defense for good-faith reliance on the statute's wording.18
Hancock concludes that the defendant should be permitted to assert the defense at a new trial.19
Whether the defense of mistake of law under Penal Law § 15.20(2)(d) is available when a defendant's belief rested on interpretations of the statute offered by fellow officers and teachers?20
Penal Law § 15.20(2)(d) requires that the interpretation of the statute relied upon must be officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.21
No. At trial Marrero attempted to introduce evidence that his belief in the legality of carrying the weapon was based on interpretations provided by fellow Federal corrections officers and by teachers.22 Penal Law § 15.20(2)(d) requires that any such interpretation must be officially made or issued by a public servant, agency, or body legally charged with administering or interpreting the statute.23 None of the individuals Marrero relied upon held any official position empowered to interpret the peace officer exemption provisions of the Criminal Procedure Law or the Penal Law.24 The trial court therefore correctly refused to allow the defense or to charge the jury on mistake of law under subdivision (2)(d).25
The mistake of law defense under subdivision (2)(d) is not available to Marrero.26
Whether review of the prior determination that defendant was not a peace officer exempt from weapons licensing requirements is available in this appeal?27
When a defendant allows an appeal from an Appellate Division order to lapse and be dismissed, review of that aspect of the case is precluded.28
No. Marrero allowed his appeal from the Appellate Division order that reversed the dismissal of the indictment and reinstated the charges to lapse and be dismissed on October 22, 1980.29 The prior determination by the Appellate Division that he was not a peace officer exempt from the licensing requirement therefore cannot be reviewed in this appeal. This follows from the rule that review of that aspect of the case is precluded when a defendant permits such an appeal to lapse.
Review of the prior determination is not available in this appeal.30