The defense of mistake of law (Penal Law § 15.20  [a], [d]) is not available to a Federal corrections officer arrested in a Manhattan social club for possession of a loaded .38 caliber automatic pistol who claimed he mistakenly believed he was entitled, pursuant to the interplay of CPL 2.10, 1.20 and Penal Law § 265.20, to carry a handgun without a permit as a peace officer.
In a prior phase of this criminal proceeding, defendant's motion to dismiss the indictment upon which he now stands convicted was granted (94 Misc.2d 367); then it was reversed and the indictment reinstated by a divided Appellate Division (71 A.D.2d 346); next, defendant allowed an appeal from that order, certified to the Court of Appeals, to lapse and be dismissed (Oct. 22, 1980). Thus, review of that aspect of the case is precluded (People v Corley, 67 N.Y.2d 105).
On the trial of the case, the court rejected the defendant's argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from
Defendant was a Federal corrections officer in Danbury, Connecticut, and asserted that status at the time of his arrest in 1977. He claimed at trial that there were various interpretations of fellow officers and teachers, as well as the peace officer statute itself, upon which he relied for his mistaken belief that he could carry a weapon with legal impunity.
The starting point for our analysis is the New York mistake statute as an outgrowth of the dogmatic common-law maxim that ignorance of the law is no excuse. The central issue is whether defendant's personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case.
The common-law rule on mistake of law was clearly articulated in Gardner v People (62 N.Y. 299). In Gardner, the defendants misread a statute and mistakenly believed that their conduct was legal. The court insisted, however, that the "mistake of law" did not relieve the defendants of criminal liability. The statute at issue, relating to the removal of election officers, required that prior to removal, written notice must be given to the officer sought to be removed. The statute provided one exception to the notice requirement: "removal * * * shall only be made after notice in writing * * * unless made while the inspector is actually on duty on a day of registration, revision of registration, or election, and for improper conduct" (L 1872, ch 675, § 13). The defendants construed the statute to mean that an election officer could be removed without notice for improper conduct at any time. The court ruled that removal without notice could only occur for improper conduct on a day of registration, revision of registration or election.
In ruling that the defendant's misinterpretation of the statute was no defense, the court said: "The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. `The rule on the subject appears to be, that in acts mala in se, the intent governs, but in those mala prohibita, the only inquiry is, has the law been violated?' (3 Den., 403). The act prohibited must be intentionally done. A mistake as to the fact of doing the act will excuse the party,
The desirability of the Gardner-type outcome, which was to encourage the societal benefit of individuals' knowledge of and respect for the law, is underscored by Justice Holmes' statement: "It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law, at 48 ).
The revisors of New York's Penal Law intended no fundamental departure from this common-law rule in Penal Law § 15.20, which provides in pertinent part:
This section was added to the Penal Law as part of the wholesale revision of the Penal Law in 1965 (L 1965, ch 1030). When this provision was first proposed, commentators viewed the new language as codifying "the established common law maxim on mistake of law, while at the same time recognizing a defense when the erroneous belief is founded upon an `official statement of the law'" (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 ).
The defendant claims as a first prong of his defense that he is entitled to raise the defense of mistake of law under section 15.20 (2) (a) because his mistaken belief that his conduct was legal was founded upon an official statement of the law contained in the statute itself. Defendant argues that his mistaken interpretation of the statute was reasonable in view of the alleged ambiguous wording of the peace officer exemption statute, and that his "reasonable" interpretation of an "official statement" is enough to satisfy the requirements of subdivision (2) (a). However, the whole thrust of this exceptional exculpatory concept, in derogation of the traditional and common-law principle, was intended to be a very narrow escape valve. Application in this case would invert that thrust and make mistake of law a generally applied or available defense instead of an unusual exception which the very opening words of the mistake statute make so clear, i.e., "A person is not relieved of criminal liability for conduct * * * unless" (Penal Law § 15.20). The momentarily enticing argument by defendant that his view of the statute would only allow a defendant to get the issue generally before a jury further supports the contrary view because that consequence is precisely what would give the defense the unintended broad practical application.
The prosecution further counters defendant's argument by asserting that one cannot claim the protection of mistake of law under section 15.20 (2) (a) simply by misconstruing the meaning of a statute but must instead establish that the statute relied on actually permitted the conduct in question and was only later found to be erroneous. To buttress that argument, the People analogize New York's official statement defense to the approach taken by the Model Penal Code (MPC). Section 2.04 of the MPC provides:
Although the drafters of the New York statute did not adopt the precise language of the Model Penal Code provision with the emphasized clause, it is evident and has long been believed that the Legislature intended the New York statute to be similarly construed. In fact, the legislative history of section 15.20 is replete with references to the influence of the Model Penal Code provision (see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 36; LaFave and Scott, Substantive Criminal Law § 5.1, n 95; Drafting a New Penal Law of New York: An Interview with Richard Denzer, 18 Buffalo L Rev 251, 252 [1968-1969]). The proposition that New York adopted the MPC general approach finds additional support in the comments to section 2.04 (see, Model Penal Code § 2.04, comment 3, n 33, at 279 [Official Draft and Revised Comments 1985]). It is not without significance that no one for over 20 years of this statute's existence has made a point of arguing or noting or holding that the difference in wording has the broad and dramatically sweeping interpretation which is now proposed. Such a turnabout would surely not have been accidentally produced or allowed. New York's drafters may even have concluded that the extra clause in the MPC was mere surplusage in view of the clear exceptionability of the mistake authorization in the first instance. Moreover, adding specified conditions by judicial construction, as the dissenters would have to do to make the mistake exception applicable in circumstances such as these, would be the sheerest form of judicial legislation.
It was early recognized that the "official statement" mistake of law defense was a statutory protection against prosecution based on reliance of a statute that did in fact authorize certain conduct. "It seems obvious that society must rely on some statement of the law, and that conduct which is in fact `authorized' * * * should not be subsequently condemned. The threat of punishment under these circumstances can have no deterrent effect unless the actor doubts the validity of the
In the case before us, the underlying statute never in fact authorized the defendant's conduct; the defendant only thought that the statutory exemptions permitted his conduct when, in fact, the primary statute clearly forbade his conduct. Moreover, by adjudication of the final court to speak on the subject in this very case, it turned out that even the exemption statute did not permit this defendant to possess the weapon. It would be ironic at best and an odd perversion at worst for this court now to declare that the same defendant is nevertheless free of criminal responsibility.
The "official statement" component in the mistake of law defense in both paragraphs (a) and (d) adds yet another element of support for our interpretation and holding. Defendant tried to establish a defense under Penal Law § 15.20 (2) (d) as a second prong. But 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." We agree with the People that the trial court also properly rejected the defense under Penal Law § 15.20 (2) (d) since none of the interpretations which defendant proffered meets the requirements of the statute. The fact that there are various complementing exceptions to section 15.20, none of which defendant could bring himself under, further emphasizes the correctness of our view which decides this case under particular statutes with appropriate precedential awareness.
It must also be emphasized that, while our construction of Penal Law § 15.20 provides for narrow application of the mistake of law defense, it does not, as the dissenters contend, "rule out any defense based on mistake of law." (See, dissenting
The modern availability of this defense is based on the theory that where the government has affirmatively, albeit unintentionally, misled an individual as to what may or may not be legally permissible conduct, the individual should not be punished as a result. This is salutary and enlightened and should be firmly supported in appropriate cases. However, it also follows that where, as here, the government is not responsible for the error (for there is none except in the defendant's own mind), mistake of law should not be available as an excuse (see, Jeffries, Legality, Vagueness and the Construction of Penal Statutes, 71 Va L Rev 189, 208 ).
We recognize that some legal scholars urge that the mistake of law defense should be available more broadly where a defendant misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal. Professor Perkins, a leading supporter of this view, has said: "[i]f the meaning of a statute is not clear, and has not been judicially determined, one who has acted `in good faith' should not be held guilty of crime if his conduct would have been proper had the statute meant what he `reasonably believed' it to mean, even if the court should decide later that the proper construction is otherwise." (Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 45.) In support of this conclusion Professor Perkins cites two cases: State v Cutter (36 NJL 125) and Burns v State (123 Tex Crim 611, 61 S.W.2d 512). In both these cases mistake of law was viewed as a valid defense to offenses where a specific intent (i.e., willfully, knowingly, etc.) was an element of the crime charged. In Burns, the court recognized mistake of law as a defense to extortion. The statute defining "extortion" made the "willful" doing of the prohibited act an essential ingredient of the offense. The court, holding that mistake of law is a defense only where the mistake negates the specific intent required for conviction, borrowed language from the Cutter case: "In State v Cutter * * * the court said: `The argument goes upon the legal maxim ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject * * * to certain important exceptions. Where the act done is malum in se, or where the law which
We conclude that the better and correctly construed view is that the defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong. Any broader view fosters lawlessness. It has been said in support of our preferred view in relation to other available procedural protections: "A statute * * * which is so indefinite that it `either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law' and is unconstitutional. If the court feels that a statute is sufficiently definite to meet this test, it is hard to see why a defense of mistake of law is needed. Such a statute could hardly mislead the defendant into believing that his acts were not criminal, if they do in fact come under its ban * * * [I]f the defense of mistake of law based on indefiniteness is raised, the court is * * * going to require proof * * * that the act was sufficiently definite to guide the conduct of reasonable men. Thus, the need for such a defense is largely supplied by the constitutional guarantee" (Hall and Seligman, Mistake of Law and Mens Rea, 8 U Chi L Rev 641, 667 ).
Strong public policy reasons underlie the legislative mandate and intent which we perceive in rejecting defendant's construction of New York's mistake of law defense statute. If defendant's argument were accepted, the exception would swallow the rule. Mistakes about the law would be encouraged, rather than respect for and adherence to law. There
Accordingly, the order of the Appellate Division should be affirmed.
The rule adopted by the majority prohibiting the defense of mistake of law under Penal Law § 15.20 (2) (a) in the circumstances here is directly contrary to the plain dictates of the statute and a rejection of the jurisprudential reforms and legislative policies underlying its enactment. For these reasons, as more fully explained herein, we cannot agree with this decision.
The basic difference which divides the court may be simply put. Suppose the case of a man who has committed an act which is criminal not because it is inherently wrong or immoral but solely because it violates a criminal statute. He has committed the act in complete good faith under the mistaken but entirely reasonable assumption that the act does not constitute an offense because it is permitted by the wording of the statute. Does the law require that this man be punished? The majority says that it does and holds that (1) Penal Law § 15.20 (2) (a) must be construed so that the man is precluded from offering a defense based on his mistake of law and (2) such construction is compelled by prevailing considerations of public policy and criminal jurisprudence. We take issue with the majority on both propositions.
There can be no question that under the view that the purpose of the criminal justice system is to punish blameworthiness
The maxim "ignorantia legis neminem excusat"
Today there is widespread criticism of the common-law rule mandating categorical preclusion of the mistake of law defense (see, e.g., White, op. cit., 77 Colum L Rev 775, 784; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486; Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]). The utilitarian arguments for retaining the rule have been drawn into serious question (see, LaFave and Scott, Substantive Criminal Law § 5.1; Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 U Va L Rev 189, 208, 209 ; White, op. cit., at 785-787; Perkins, op. cit., 88 U Pa L Rev 35, 51-53; United States v Barker, 514 F.2d 208, 228-231 [Bazelon, Ch. J., concurring], supra) but the fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance on the wording of a statute, believed that what he was doing was lawful. It is contrary to "the notion that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., at 784). This basic objection to the maxim "ignorantia legis neminem excusat" may have had less force in ancient times when most crimes consisted of acts
With this background we proceed to a discussion of our disagreement with the majority's construction of Penal Law § 15.20 (2) (a) and the policy and jurisprudential arguments made in support of that construction. There are two grounds for our dissent:
Penal Law § 15.20 (effect of ignorance or mistake upon liability), in pertinent part, provides: "2. 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) a statute or other enactment".
It is fundamental that in interpreting a statute, a court should look first to the particular words of the statute in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 N.Y.2d 8, 15, 16; McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 232). Here, there is but one natural and obvious meaning of the statute: that if a defendant can establish that his mistaken belief was "founded upon" his interpretation of "an official statement of the law contained in * * * statute" (Penal Law § 15.20  [a]), he should have a defense. No other natural and obvious meaning has been suggested.
It is difficult to imagine a case more squarely within the wording of Penal Law § 15.20 (2) (a) or one more fitted to what appears clearly to be the intended purpose of the statute than the one before us. For this reason it is helpful to discuss the statute and its apparent intended effect in the light of what defendant contends was his mistaken belief founded on an official statement of the law contained in a statute.
Defendant stands convicted after a jury trial of criminal possession of a weapon in the third degree for carrying a loaded firearm without a license (Penal Law § 265.02). He concedes that he possessed the unlicensed weapon but maintains that he did so under the mistaken assumption that his conduct was permitted by law. Although at the time of his arrest he protested that he was a Federal corrections officer and exempt from prosecution under the statute, defendant was charged with criminal possession of a weapon in the third degree. On defendant's motion before trial the court dismissed the indictment, holding that he was a peace officer as defined
Defendant's mistaken belief that, as a Federal corrections officer, he could legally carry a loaded weapon without a license was based on the express exemption from criminal liability under Penal Law § 265.02 accorded in Penal Law § 265.20 (a) (1) (a) to "peace officers" as defined in the Criminal Procedure Law and on his reading of the statutory definition for "peace officer" in CPL 2.10 (25) as meaning a correction officer "of any penal correctional institution" (emphasis added), including an institution not operated by New York State. Thus, he concluded erroneously that, as a corrections officer in a Federal prison, he was a "peace officer" and, as such, exempt by the express terms of Penal Law § 265.20 (a) (1) (a). This mistaken belief, based in good faith on the statute defining "peace officer" (CPL 2.10 ), is, defendant contends, the precise sort of "mistaken belief * * * founded upon an official statement of the law contained in * * * a statute or other enactment" which gives rise to a mistake of law defense under Penal Law § 15.20 (2) (a). He points out, of course, that when he acted in reliance on his belief he had no way of foreseeing that a court would eventually resolve the question of the statute's meaning against him and rule that his belief had been mistaken, as three of the five-member panel at the Appellate Division ultimately did in the first appeal (see, People v Marrero, 71 A.D.2d 346, supra).
Nothing in the statutory language suggests the interpretation urged by the People and adopted by the majority: that Penal Law § 15.20 (2) (a) is available to a defendant not when he has mistakenly read a statute but only when he has correctly read and relied on a statute which is later invalidated (respondent's brief, at 26). Such a construction contravenes the general rule that penal statutes should be construed against the State and in favor of the accused (see, McKinney's Cons Laws of NY, Book 1, Statutes § 271) and the Legislature's specific directive that the revised Penal Law should not be strictly construed but "must be construed according to the fair import of [its] terms to promote justice and effect the objects of the law" (Penal Law § 5.00).
More importantly, the construction leads to an anomaly: only a defendant who is not mistaken about the law when he acts has a mistake of law defense. In other words, a defendant can assert a defense under Penal Law § 15.20 (2) (a) only when his reading of the statute is correct — not mistaken. Such construction is obviously illogical; it strips the statute of the very effect intended by the Legislature in adopting the mistake
Finally, the majority's disregard of the natural and obvious meaning of Penal Law § 15.20 (2) (a) so that a defendant mistaken about the law is deprived of a defense under the statute amounts, we submit, to a rejection of the obvious legislative purposes and policies favoring jurisprudential reform underlying the statute's enactment. It is self-evident that in enacting Penal Law § 15.20 (2) as part of the revision and modernization of the Penal Law (L 1965, ch 1030) the Legislature intended to effect a needed reform by abolishing what had long been considered the unjust archaic common-law rule totally prohibiting mistake of law as a defense. Had it not so intended it would simply have left the common-law rule intact. In place of the abandoned "ignorantia legis" common-law maxim the Legislature enacted a rule which permits no defense for ignorance of law but allows a mistake of law defense in specific instances, including the one presented here: when the defendant's erroneous belief is founded on an "official statement of the law" (see, Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485, 1486).
This reform, like the changes adopted in Model Penal Code § 2.04 (3) and those proposed by various legal commentators, was prompted by the prevailing dissatisfaction with the common-law rule (see, Model Penal Code § 2.04, comment 3, at 274-276 [Official Draft and Revised Comments 1985]; Note, op. cit., 64 Colum L Rev 1469, 1485, 1486). Both the Model Penal Code and Penal Law § 15.20 (2) accept the general concept that the outright prohibition of the mistake of law defense under the common law should be replaced with a rule permitting "a limited defense based on a reasonable belief on the part of the defendant that the law is such that his conduct does not constitute an offense" (Model Penal Code § 2.04, comment 3, at 274 [Official Draft and Revised Comments 1985]; see, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 36-37).
The majority construes the statute, however, so as to rule
Although expressing its evident conviction that the statute should be treated as an "exceptional exculpatory concept * * * intended to be a very narrow escape valve" (majority opn, at 387), the majority cites no language in the statute or in the legislative history supporting its views or the construction of Penal Law § 15.20 (2) (a) which seems so contrary to the statute's plain language and evident purpose. Despite the assertion that such construction reflects "appropriate precedential awareness" (id., at 389), the majority cites no precedential authority.
Instead, the majority bases its decision on an analogous provision in the Model Penal Code and concludes that despite its totally different wording and meaning Penal Law § 15.20 (2) (a) should be read as if it were Model Penal Code § 2.04 (3) (b) (i). But New York in revising the Penal Law did not adopt the Model Penal Code. As in New Jersey, which generally adopted the Model Penal Code but added one section which is substantially more liberal,
While Penal Law § 15.20 (2) and Model Penal Code § 2.04 are alike in their rejection of the strict common-law rule, they are not alike in wording and differ significantly in substance. The Model Penal Code provides a limited defense for ignorance of the law (Model Penal Code § 2.04  [a]). Penal Law § 15.20 (2) omits any such defense. In respect to the defense based upon an actor's reliance on an official statement of law contained in a statute the Model Penal Code and the New York statute are totally dissimilar (compare, Model Penal Code § 2.04  [b] [i], to Penal Law § 15.20  [a]). The Model Penal Code does not permit a defense for someone who acts in good faith upon a mistaken belief that a specific statute authorizes his conduct.
Thus, the precise phrase in the Model Penal Code limiting the defense under section 2.04 (3) (b) (i) to reliance on a statute "afterward determined to be invalid or erroneous" which, if present, would support the majority's narrow construction of the New York statute, is omitted from Penal Law § 15.20 (2) (a). How the Legislature can be assumed to have enacted the very language which it has specifically rejected is not explained (see, People v Goetz, 68 N.Y.2d 96, 109, 110, supra; McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 240, at 413).
As an alternate interpretation of Penal Law § 15.20 (2) (a) the majority suggests that the Legislature intended that the statute should afford a defense only in cases involving acts
Nor does it seem possible that the Legislature could have intended to permit a mistake of law defense only in the limited circumstance where it had already been permitted prior to the enactment of the statute, i.e., to negate a specific element of the charge (see, People v Weiss, supra). Such a reading, contrary to the statute's plain meaning, makes Penal Law § 15.20 (2) (a) superfluous. While it is quite true that New York has followed the Model Penal Code in codifying the "ignorantia legis" maxim as the basic rule (see, majority opn, at 387; dissenting opn, at 395-396) we are concerned here not with the basic rule but with the modifications and exceptions to that rule enacted in Penal Law § 15.20 (2). It is only through these limited exceptions that the easing of the common-law rule is effected. Reading the statute merely as a codification of People v Weiss (supra) would amount to a total rejection of the legislative purpose of effecting this needed jurisprudential reform. The interpretation is contrary to accepted canons of statutory construction (McKinney's Cons Laws of NY, Book 1, Statutes §§ 94, 95, 96, 143, 145).
Any fair reading of the majority opinion, we submit, demonstrates that the decision to reject a mistake of law defense is based on considerations of public policy and on the conviction that such a defense would be bad, rather than on an analysis of CPL 15.20 (2) (a) under the usual principles of statutory construction (see, majority opn, at 390-391). The majority warns, for example, that if the defense were permitted "the exception would swallow the rule"; that "[m]istakes about the law would be encouraged"; that an "infinite number of mistake of law defenses * * * could be devised"; and that "wrongminded individuals [could] contrive in bad faith solely to get an exculpatory notion before the jury." (Majority opn, at 391, 392.)
These considerations, like the People's argument that the mistake of law defense "`would encourage ignorance where knowledge is socially desired'" (respondent's brief, at 28), are the very considerations which have been consistently offered as justifications for the maxim "ignorantia legis". That these justifications are unabashedly utilitarian cannot be questioned. It could not be put more candidly than by Justice Holmes in defending the common-law maxim more than 100 years ago: "Public policy sacrifices the individual to the general good * * * It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales" (Holmes, The Common Law, at 48 ; emphasis added). Regardless of one's attitude toward the acceptability of these views in the 1980's, the fact remains that the Legislature in abandoning the strict "ignorantia legis" maxim must be deemed to have rejected them.
We believe that the concerns expressed by the majority are matters which properly should be and have been addressed by the Legislature. We note only our conviction that a statute which recognizes a defense based on a man's good-faith mistaken belief founded on a well-grounded interpretation of an official statement of the law contained in a statute is a just law. The law embodies the ideal of contemporary criminal jurisprudence "that punishment should be conditioned on a showing of subjective moral blameworthiness" (White, op. cit., 77 Colum L Rev 775, 784).
It is no answer to protest that the defense may become a
If defendant's offer of proof is true, his is not the case of a "free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong" (Pound, Introduction to Sayre, Cases on Criminal Law , quoted in Morissette v United States, 342 U.S. 246, 250, n 4). He carried the gun in the good-faith belief that, as a Federal corrections officer, it was lawful for him to do so under the words of the statute (Penal Law § 265.20 [a]  [former a]; CPL 2.10, 1.20 [see, dissenting opn, at 397, n 7). That his interpretation of the statute as exempting corrections officers (whether or not employed in a State facility) was a reasonable one can hardly be questioned. If the statute does not plainly say that corrections officers are exempt, as defendant contends, the statute at the very least is ambiguous and clearly susceptible to that interpretation. Indeed, Supreme Court in dismissing the indictment (94 Misc.2d 367) and two of the five-member panel in the first appeal to the Appellate Division (71 A.D.2d 346) read the statute as it was read by defendant and the police officials and others whose opinions he sought. We believe that under our present Penal Law and the policies underlying its revision (L 1965, ch 1030) this defendant should not be found guilty of violating Penal Law § 265.02 if he can establish that his conduct was based on a good-faith mistake of law founded on the wording of the statute.
We do not believe that permitting a defense in this case will produce the grievous consequences the majority predicts. The unusual facts of this case seem unlikely to be repeated.
But these questions are now beside the point, for the Legislature has given its answer by providing that someone in defendant's circumstances should have a mistake of law defense (Penal Law § 15.20  [a]). Because this decision deprives defendant of what, we submit, the Legislature intended that he should have, we dissent.
There should be a reversal and defendant should have a new trial in which he is permitted to assert a defense of mistake of law under Penal Law § 15.20 (2) (a).