When a New York environmental conservation officer makes an arrest for a Fish and Wildlife Law offense, does the Penal Law's general firearm seizure rule apply, or only the narrower ECL rule limited to illegal deer-taking?

Plain-English summary

DEC's counsel asked which firearm seizure rule applied when an environmental conservation officer arrested someone for a Fish and Wildlife Law offense: the Penal Law's general seizure provision in § 400.05(1), which by its terms reaches any offense, or the narrower Environmental Conservation Law provision in § 71-0907(4)(f)(3), which authorizes seizure only for misdemeanors involving the illegal taking or attempted taking of wild deer.

The AG concluded the ECL provision controls within its domain. Two canons of construction did the work.

First, the specific governs the general. ECL § 71-0907(4)(f)(3) specifically authorizes seizure for deer-taking violations of the Fish and Wildlife Law, and ECL § 71-0909 requires forfeiture on conviction. Other categories of Fish and Wildlife Law offenses carry penalties but no firearm seizure. Reading the Penal Law's general seizure rule to override ECL would erase the legislative judgment that limited seizure to deer offenses, leaving the ECL provision "ineffective and meaningless." The Penal Law's general seizure power retains its meaning in every other criminal context, so the canon points one way.

Second, the more recent and more specific provision presumptively controls over the older and more general. The Penal Law provision traces to Penal Code § 411-a (added by L. 1907, ch. 582). The ECL seizure provision traces to Conservation Law § 380(4)(f)(iii) (added by L. 1955, ch. 630), the predecessor of current ECL § 71-0907(4)(f)(iii). The 1972 enactment of the ECL (L. 1972, ch. 664) carried the specific provision forward.

The "Control Provision" in ECL § 71-0101 said the Penal Law and Criminal Procedure Law control over the ECL "to the same extent they controlled" over the prior Conservation Law. The AG read this as preserving the procedural roles of CPL (adjudication, sentencing, § 380.10) and Penal Law (offense classifications, § 10.00) without disturbing the specific-over-general rule on firearm seizure.

The AG also flagged an important practical point: if the same conduct independently violates the Penal Law (for example, hunting with an unlicensed firearm in violation of Penal Law Article 400), the Penal Law seizure provision applies to that separate offense. The Fish and Wildlife Law analysis does not shield a firearm from seizure under a coincident Penal Law violation.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can the firearm be seized for non-deer Fish and Wildlife Law offenses?

Not under the ECL. Examples of offenses listed in footnote 2 of the opinion (turkey hunting with non-conforming shot, hunting turkey with rifle, hunting migratory game birds with a larger-than-10-gauge shotgun, hunting ducks without steel shot) carry fines and short jail terms but no firearm seizure authority.

Does the rule cover bows or other "non-firearm" weapons?

The Fish and Wildlife Law's definition of "firearm" in 6 NYCRR § 180.3(a) is broad: any device that uses gunpowder, spring, air, or other gas to expel a projectile capable of killing wildlife. Bows are typically classified separately under hunting equipment regulations. The opinion does not address bow seizure.

What if the same conduct violates both ECL and Penal Law?

The Penal Law's seizure power applies to its own offenses. The AG specifically noted that an unlicensed firearm carried while hunting can violate Penal Law Article 400 separately from any Fish and Wildlife Law offense. Where the dual violation exists, Penal Law § 400.05(1) seizure of the firearm is available for that separate offense.

Does the Penal Law govern the procedure of the case?

Yes. The Criminal Procedure Law governs criminal court adjudication of all offenses under § 10.30 and § 380.10(1), and the Penal Law governs offense classification under § 10.00. The Control Provision preserves those procedural roles. The ECL governs the substantive limits on firearm seizure.

Background and statutory framework

The Fish and Wildlife Law is housed in Environmental Conservation Law Articles 11 and 13, enforced under ECL Title 9 (encompassing §§ 71-0901 through 71-0925).

ECL § 71-0907(4)(f)(3) authorizes ECL officers to seize as evidence without warrant any firearm where they have cause to believe it was used in a Fish and Wildlife Law misdemeanor involving the illegal taking or attempted taking of wild deer. ECL § 71-0909 requires forfeiture upon conviction.

ECL § 71-0101 (the Control Provision) reads: "Notwithstanding any provision of this chapter, the provisions of the Penal Law and of the Criminal Procedure Law control over the provisions of this chapter to the same extent they controlled over the provisions of law from which this chapter is derived, on the date immediately preceding the effective date of this chapter."

ECL § 71-0211 governs disposition of fees and penalties; ECL § 71-0911 governs procedures in criminal courts; § 71-0919, § 71-0921, and § 71-0923 contain offense and penalty provisions for various Fish and Wildlife Law violations.

Penal Law § 400.05(1) is the general seizure provision applicable to firearms. Penal Law Article 400 contains the licensing and possession regime; Article 265 contains the criminal offenses for unlawful firearm possession and use. Penal Law § 10.00 contains the offense classifications used in adjudication.

6 NYCRR § 180.3(a) defines "firearm" for Fish and Wildlife Law purposes. 6 NYCRR § 1.40 and § 2.30 contain the turkey-hunting and migratory-bird hunting regulations cited in the opinion's footnote 2 as examples of offenses without firearm seizure.

L. 1972, ch. 664 enacted the ECL; L. 1955, ch. 630 enacted the predecessor Conservation Law seizure provision; L. 1907, ch. 582 enacted the Penal Code's predecessor seizure provision.

Citations

• Environmental Conservation Law § 71-0101 (Control Provision: Penal Law and CPL control "to the same extent" as before ECL).
• Environmental Conservation Law § 71-0907(4)(f)(3) (firearm seizure for illegal deer-taking only).
• Environmental Conservation Law § 71-0909 (forfeiture upon conviction).
• Environmental Conservation Law § 71-0911 (criminal court procedure).
• Environmental Conservation Law § 71-0919; § 71-0921; § 71-0923 (offenses and penalties without firearm seizure).
• Penal Law § 400.05(1) (general firearm seizure power).
• Penal Law § 10.00 (offense classifications).
• Penal Law Articles 265, 400 (firearm offenses; licensing).
• Criminal Procedure Law § 10.30 (court jurisdiction over offenses).
• Criminal Procedure Law § 100.10 (accusatory instruments).
• Criminal Procedure Law § 380.10(1) (sentencing for any offense).
• 6 NYCRR § 180.3(a) (definition of "firearm" for Fish and Wildlife Law).
• 6 NYCRR § 1.40, § 2.30 (regulations governing turkey and migratory game bird hunting).
• L. 1972, ch. 664 (enactment of Environmental Conservation Law).
• L. 1955, ch. 630 (enactment of Conservation Law § 380(4)(f)(iii)).
• L. 1907, ch. 582 (Penal Code § 411-a, predecessor to Penal Law § 400.05).
• Matter of Schulz v. New York State Board of Elections, 214 A.D.2d 224 (3d Dep't 1995) (statutes should not be construed to render parts meaningless).
• Knapp v. Monroe County Civil Service Commission, 77 A.D.2d 817 (4th Dep't 1980) (same canon).
• St. Germain v. St. Germain, 25 A.D.2d 568 (2d Dep't 1966) (specific and more recent statute presumptively controls).
• Op Atty Gen (Inf) No. 82-44 (specific-over-general canon).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2000-F2_pw.pdf

Original opinion text

Opn. No. 2000-F2
CRIMINAL PROCEDURE LAW, ARTICLES 11, 13, §§ 10.30, 100.10, 380.10(1); ENVIRONMENTAL CONSERVATION LAW §§ 71-0101, 71-0211, 71-0907, 71-0909, 71-0911, 71-0919, 71-0921, 71-0923; PENAL LAW ARTICLES 265, 400, §§ 10.00, 400.05; 6 NYCRR §§ 1.40, 2.30, 180.3(a); L 1972, CH 664, L 1955, CH 630; L 1907, CH 582. The provisions of the Environmental Conservation Law, relating to enforcement of offenses under the Fish and Wildlife Law, govern the seizure of firearms used in the commission of environmental offenses defined by that Law. February 25, 2000 Hon. John P. Cahill Commissioner Department of Environmental Conservation 50 Wolf Road Albany, NY 12233 - 1500

Formal Opinion
No. 2000-F2

Dear Commissioner Cahill:
Your counsel has requested our opinion as to whether the enforcement provisions of the Environmental Conservation Law or of the Penal Law govern the seizure of firearms used in the commission of environmental offenses set forth in the Fish and Wildlife Law. See, Environmental Conservation Law Title 9 (enforcement of Articles 11 and 13 - The Fish and Wildlife Law). The Penal Law contains a broad seizure requirement, which by its terms is applicable to any offense. See, Penal Law § 400.05(1). The Environmental Conservation Law provides specific penalties for certain offenses and for seizure of firearms in a limited situation. The question is whether the Penal Law's general provision or the Environmental Conservation Law's specific provision applies to the limited number of environmental offenses addressed in the Fish and Wildlife Law. We conclude that the specific seizure provisions of the Environmental Conservation Law take precedence over the general provisions of the Penal Law with respect to environmental offenses set forth in the Fish and Wildlife Law. The Environmental Conservation Law authorizes the seizure and forfeiture of firearms only for the violation of a specific category of offenses involving the illegal taking or attempted taking of wild deer. It provides officers and employees designated by the Commissioner with the power: (f) To seize as evidence without warrant
...
(3) Any firearm, when they have cause to believe that it has been used in a violation of the Fish and Wildlife Law constituting a misdemeanor involving the illegal taking or attempting to take wild deer. Environmental Conservation Law § 71-0907(4)(f)(3). Environmental Conservation Law § 71-0909 requires the forfeiture of such firearms if the defendant is liable or found guilty of this category of offenses involving wild deer. For other categories of offenses under the Fish and Wildlife Law, specific penalties are prescribed, but not seizure of firearms. The authority for seizure of firearms, limited to the illegal taking or attempted taking of wild deer, suggests that the Legislature did not intend to permit seizure of firearms used in the commission of the many other categories of Fish and Wildlife Law offenses defined solely in that Law. As a general rule, statutes should not be construed so as to render them or any parts ineffective and meaningless. See, Matter of Schulz v New York State Board of Elections, 214 AD2d 224 (3d Dept), lv denied, 86 NY2d 848 (1995); Knapp v Monroe County Civil Service Commission, 77 AD2d 817 (4th Dept), lv denied, 51 NY2d 708, appeal dismissed, 51 NY2d 877 (1980). Application of the Penal Law seizure provision to enforcement of the Fish and Wildlife Law would render meaningless the limited and specific seizure authority under the Environmental Conservation Law. By contrast, the Penal Law seizure provision, even if not applied to the Environmental Conservation Law enforcement provisions, would still have widespread application and therefore would not be deprived of meaning. Moreover, as a general rule of statutory construction, a more recent and more specific statute takes precedence over an older and more general statute. St. Germain v St. Germain, 25 AD2d 568 (2d Dept 1966); Op Atty Gen (Inf) No. 82-44. The Penal Code seizure provision, upon which current Penal Law § 400.05(1) is based, pre-dates the Conservation Law seizure provision, the predecessor of Environmental Conservation Law § 71-0907(4)(f)(iii). See, Penal Code § 411-a, added by L 1907, ch 582; Conservation Law § 380(4)(f)(iii), added by L 1955, ch 630. The more recent and more specific seizure provision of the Environmental Conservation Law thus presumptively takes precedence over the Penal Law provision. Applying these principles of statutory construction, we conclude that offenses under the Fish and Wildlife Law are subject to the seizure provisions of the Environmental Conservation Law, providing only for the seizure of firearms used in the illegal taking or attempted taking of wild deer. In reaching this conclusion, we have necessarily taken into account the "Control Provision" in Environmental Conservation Law § 71-0101. Under the Control Provision, the Penal Law and Criminal Procedure Law control the Environmental Conservation Law to the same extent they controlled its predecessor statute immediately prior to the effective date of the Environmental Conservation Law. Specifically, the Control Provision states: Notwithstanding any provision of this chapter, the provisions of the Penal Law and of the Criminal Procedure Law control over the provisions of this chapter to the same extent they controlled over the provisions of law from which this chapter is derived, on the date immediately preceding the effective date of this chapter. Environmental Conservation Law
§ 71-0101.
The Control Provision does not alter our conclusion that the seizure provision of the Environmental Conservation Law, rather than that of the Penal Law, govern environmental offenses under the Fish and Wildlife Law. The seizure provisions of both the Conservation Law and the Penal Law in effect immediately prior to chapter 664 of the Laws of 1972, which established the Environmental Conservation Law, were substantively the same as current seizure provisions of the Environmental Conservation Law and Penal Law. The Environmental Conservation Law was enacted pursuant to chapter 664 of the Laws of 1972 and became effective on September 1, 1972. Chapter 664 is derived from the previous Conservation Law, the law in effect "immediately preceding the effective date of this chapter [664]." Conservation Law § 380(4)(f)(iii), enacted in 1955, authorized the seizure and forfeiture of firearms "used in violation of the Fish and Game Law constituting a misdemeanor involving the illegal taking or attempting to take wild deer." Seizure was not authorized for other violations of that Law. The general seizure provision in Penal Law § 400.05(1) in effect immediately prior to enactment of the Environmental Conservation Law pre-dated the seizure provision of the Conservation Law. The Penal Law's seizure provision was derived from Penal Code § 411-a, which was added to the Penal Code by chapter 582 of the Laws of 1907. Applying the same principles of statutory analysis that govern applicability of the current seizure provisions of the Penal Law and of the Environmental Conservation Law, the more recent and more specific seizure provisions of the previous Conservation Law would have applied to offenses under that law "on the date immediately preceding the effective date of" the Environmental Conservation Law. This construction does not, however, leave the "Control Provision" without significance. Neither the Environmental Conservation Law nor its predecessor Conservation Law establishes a procedure for disposition of charges for violations of offenses contained in the law. See, id., § 71-0211 (disposition of fees and penalties). The Criminal Procedure Law applies to adjudication and "sentencing for every offense, whether defined within or outside of the penal law." Criminal Procedure Law §§ 10.30, 380.10 (1). Therefore, the Criminal Procedure Law governs procedures in the criminal courts, including adjudication of offenses charged under the Environmental Conservation Law. See, e.g., Environmental Conservation Law § 71-0911. We posit that in establishing the procedure for adjudication of offenses, the Criminal Procedure Law "controls" the Environmental Conservation Law within the meaning of the Control Provision in section 71-0101 of that Law. Similarly, the Penal Law provides or "controls" the definition of various degrees of offenses. Penal Law § 10.00(1)-(6). These definitions determine the procedure applicable under the Criminal Procedure Law for adjudication of the various offenses. See, e.g., Criminal Procedure Law § 100.10. We note that the Penal Law, including its general seizure provision, would apply where actions of a person constitute separate specific offenses under the Fish and Wildlife Law and the Penal Law. For example, a specific offense under the Fish and Wildlife Law involving use or possession of a firearm by a hunter might constitute a separate offense under article 400 of the Penal Law if the person possessing a firearm does not have the required license or if possession or use of the firearm violates the conditions of the license. Even though the unlawful act relates to hunting, the specific Penal Law offense would also apply. Under these circumstances, enforcement for violation of article 400 of the Penal Law would include seizure of the firearm under section 400.05(1) of that Law. In our opinion, the provisions of the Environmental Conservation Law, relating to enforcement of offenses under the Fish and Wildlife Law, govern the seizure of firearms with respect to violations of the Fish and Wildlife Law. Very truly yours, ELIOT SPITZER Attorney General

1 For purposes of the Fish and Wildlife Law, "firearm" means "any gun or other instrument which by force of gunpowder or other explosive, or which by the force of a spring, air or other gas, expels a missile or projectile capable of killing, wounding or otherwise inflicting physical damage upon fish, wildlife or other animals." 6 NYCRR § 180.3(a). 2 For example, violations of Environmental Conservation Law § 71-0923, punishable by imprisonment for not more than 15 days, a fine not exceeding $250, or both fine and imprisonment, include: Hunting turkey with shot larger than #2 or smaller than #8 (6 NYCRR § 1.40[f][3]); Hunting turkey with a rifle or handgun (6 NYCRR § 1.40[f][4]); Taking migratory game birds with a shotgun larger than 10-gauge (6 NYCRR § 2.30[b][1]); and Hunting ducks, coots or geese using other than steel shot (6 NYCRR § 2.30[c]).

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