Andrew C. Fine, Katherine Preece and Philip L. Weinstein for appellant.

Robert M. Morgenthau, District Attorney (Robert M. Raciti and Donald J. Siewert of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS and TITONE concur with Judge BELLACOSA; Judge HANCOCK, JR., dissents and votes to reverse in a separate opinion in which Judges KAYE and ALEXANDER concur.

[384] BELLACOSA, J.

The defense of mistake of law (Penal Law § 15.20 [2] [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 AD2d 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 [385] criminal liability under New York's mistake of law statute (Penal Law § 15.20). The court refused to charge the jury on this issue and defendant was convicted of criminal possession of a weapon in the third degree. We affirm the Appellate Division order upholding the conviction.

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, [386] but if the act is intentionally done, the statute declares it a misdemeanor, irrespective of the motive or intent * * * The evidence offered [showed] that the defendants were of [the] opinion that the statute did not require notice to be given before removal. This opinion, if entertained in good faith, mitigated the character of the act, but was not a defence [sic]" (Gardner v People, 62 N.Y. 299, 304, supra). This is to be contrasted with People v Weiss (276 N.Y. 384) where, in a kidnapping case, the trial court precluded testimony that the defendants acted with the honest belief that seizing and confining the child was done with "authority of law". We held it was error to exclude such testimony since a good-faith belief in the legality of the conduct would negate an express and necessary element of the crime of kidnapping, i.e., intent, without authority of law, to confine or imprison another. Subject to the mistake statute, the instant case, of course, falls within the Gardner rationale because the weapons possession statute violated by this defendant imposes liability irrespective of one's intent.

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 [1881]).

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:

"§ 15.20. Effect of ignorance or mistake upon liability.* * *"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 * * * (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility [387] or privilege of administering, enforcing or interpreting such statute or law."

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 [1964]).

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:

[388] "Section 2.04. Ignorance or Mistake.* * *"(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment" (emphasis added).

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 [389] official pronouncement — a questioning of authority that is itself undesirable" (Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1486 [emphasis added]). While providing a narrow escape hatch, the idea was simultaneously to encourage the public to read and rely on official statements of the law, not to have individuals conveniently and personally question the validity and interpretation of the law and act on that basis. If later the statute was invalidated, one who mistakenly acted in reliance on the authorizing statute would be relieved of criminal liability. That makes sense and is fair. To go further does not make sense and would create a legal chaos based on individual selectivity.

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 [390] opn, at 399-400.) To the contrary, mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later, it is determined that there was a mistake in the law itself.

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 [1985]).

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 SW2d 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 [391] has been infringed was settled and plain, the maxim, in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied'" (Burns v State, 123 Tex Crim, at 613, 61 SW2d, at 513, supra [emphasis added]). Thus, while Professor Perkins states that the defense should be available in cases where the defendant claims mistaken reliance on an ambiguous statute, the cases he cites recognize the defense only where the law was ambiguous and the ignorance or mistake of law negated the requisite intent (see also, People v Weiss, 276 N.Y. 384, supra). In this case, the forbidden act of possessing a weapon is clear and unambiguous, and only by the interplay of a double exemption does defendant seek to escape criminal responsibility, i.e., the peace officer statute and the mistake statute.

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 [1941]).

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 [392] would be an infinite number of mistake of law defenses which could be devised from a good-faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are concededly complex. Even more troublesome are the opportunities for wrongminded individuals to contrive in bad faith solely to get an exculpatory notion before the jury. These are not in terrorem arguments disrespectful of appropriate adjudicative procedures; rather, they are the realistic and practical consequences were the dissenters' views to prevail. Our holding comports with a statutory scheme which was not designed to allow false and diversionary stratagems to be provided for many more cases than the statutes contemplated. This would not serve the ends of justice but rather would serve game playing and evasion from properly imposed criminal responsibility.

Accordingly, the order of the Appellate Division should be affirmed.

HANCOCK, JR., J. (dissenting).

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.

I

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 [393] or "choosing freely to do wrong",^[1] our supposed man who has acted innocently and without any intent to do wrong should not be punished (see, United States v Barker, 514 F.2d 208, 228-229 [Bazelon, Ch. J., concurring]). Indeed, under some standards of morality he has done no wrong at all (Patterson, Cardozo's Philosophy of Law, Part II, 88 U Pa L Rev 156, 169-171 [1939-1940]).^[2] Since he has not knowingly committed a wrong there can be no reason for society to exact retribution. Because the man is law-abiding and would not have acted but for his mistaken assumption as to the law, there is no need for punishment to deter him from further unlawful conduct. Traditionally, however, under the ancient rule of Anglo-American common law that ignorance or mistake of law is no excuse, our supposed man would be punished.

The maxim "ignorantia legis neminem excusat"^[3] finds its roots in Medieval law when the "actor's intent was irrelevant since the law punished the act itself" (United States v Barker, supra, at 228 [Bazelon, Ch. J., concurring]; emphasis in original; see, Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]) and when, for example, the law recognized no difference between an intentional killing and one that was accidental (Ames, Law and Morals, 22 Harv L Rev 97, 98 [1908]). Although the common law has gradually evolved from its origins in Anglo-Germanic tribal law^[4] (adding the element of intent [mens rea] and recognizing defenses based on the actor's mental state — e.g., justification, insanity and intoxication) the dogmatic rule that ignorance or mistake of law is no excuse has remained unaltered. Various justifications have been offered for the rule, but all are frankly pragmatic and utilitarian — preferring the interests of society [394] (e.g., in deterring criminal conduct, fostering orderly judicial administration, and preserving the primacy of the rule of law)^[5] to the interest of the individual in being free from punishment except for intentionally engaging in conduct which he knows is criminal (see, White, Reliance on Apparent Authority as a Defense to Criminal Prosecution, 77 Colum L Rev 775, 784-789 [1977]; Perkins, Ignorance and Mistake in Criminal Law, 88 U Pa L Rev 35, 40, 41 [1939]; Ryu and Silving, Error Juris: A Comparative Study, 24 U Chi L Rev 421, 431-434 [1957]; United States v Barker, supra, at 230-232 [Bazelon, Ch. J., concurring]).

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 [1985]; 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 [395] which by their very nature were recognized as evil (malum in se) (id., at 784). In modern times, however, with the profusion of legislation making otherwise lawful conduct criminal (malum prohibitum), the "common law fiction that every man is presumed to know the law has become indefensible in fact or logic" (id., at 784; see, Note, Proposed Penal Law of New York, op. cit., at 1486; Ryu and Silving, op. cit., 24 U Chi L Rev 421, 433, 434 [1957]; United States v Barker, supra, at 228-232 [Bazelon, Ch. J., concurring]).^[6]

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:

II

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 [2] [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 [397] by CPL 2.10 (25) and, therefore, exempted by Penal Law § 265.20 from prosecution under Penal Law § 265.02 (94 Misc 2d 367).^[7] The People appealed and the Appellate Division reversed and reinstated the indictment by a 3-2 vote (71 AD2d 346).^[8] Defendant's appeal to this court was dismissed for failure to prosecute and the case proceeded to trial. The trial court rejected defendant's efforts to establish a defense of mistake of law under Penal Law § 15.20 (2) (a). He was convicted and the Appellate Division has affirmed.

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 [25]), 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 AD2d 346, supra).

[398] The majority, however, has accepted the People's argument that to have a defense under Penal Law § 15.20 (2) (a) "a defendant must show that the statute permitted his conduct, not merely that he believed it did" (respondent's brief, at 26 [emphasis added]). Here, of course, defendant cannot show that the statute permitted his conduct. To the contrary, the question has now been decided by the Appellate Division and it is settled that defendant was not exempt under Penal Law § 265.20 (a) (1) (a). Therefore, the argument goes, defendant can have no mistake of law defense. While conceding that reliance on a statutory provision which is later found to be invalid would constitute a mistake of law defense (see, Model Penal Code § 2.04 [3] [b] [i]), the People's flat position is that "one's mistaken reading of a statute, no matter how reasonable or well intentioned, is not a defense" (respondent's brief, at 27).

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).^[9]

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 [399] of law defense. The statute is of no benefit to a defendant who has proceeded in good faith on an erroneous but concededly reasonable interpretation of a statute, as defendant presumably has. An interpretation of a statute which produces an unreasonable or incongruous result and one which defeats the obvious purpose of the legislation and renders it ineffective should be rejected (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

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 [400] out any defense based on mistake of law. In so doing, it defeats the only possible purpose for the statute's enactment and resurrects the very rule which the Legislature rejected in enacting Penal Law § 15.20 (2) (a) as part of its modernization and reform of the Penal Law. It is fundamental that a construction of a statute which does not further the statute's object, spirit and purpose must be rejected (see, Price v Price, 69 N.Y.2d 8, 16, supra; Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38, 39; Matter of New York Post Corp. v Leibowitz, 2 N.Y.2d 677, 685, 686; People v Ryan, 274 N.Y. 149, 152; McKinney's Cons Laws of NY, Book 1, Statutes § 96).

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,^[10] New York followed parts of the Model Penal Code provisions and rejected others. In People v Goetz (68 N.Y.2d 96), we said that the Legislature's rejection of the verbatim provisions of the Model Penal Code was crucial in determining its intent in drafting the statute.^[11] The significance [401] of the alterations here can be no different.

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 [3] [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 [3] [b] [i], to Penal Law § 15.20 [2] [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.^[12] The defense is limited to an act in reliance on an official statement of law in a statute "afterward determined to be invalid or erroneous" (Model Penal Code § 2.04 [3] [b]; emphasis added). The New York statute, in contrast, specifically permits the defense when the actor proceeds under "a mistaken belief" that his conduct does not "constitute an offense" when that "mistaken belief is founded upon an official statement of the law contained in * * * a statute" (Penal Law § 15.20 [2] [a]; emphasis added).

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 [402] mala in se such as People v Weiss (276 N.Y. 384 [involving kidnapping charges]) "where specific intent is an element of the offense" (majority opn, at 391). Again such construction is at odds with the plain wording of Penal Law § 15.20 (2) (a) and finds no support in the statutory history or the literature. There are, moreover, other fundamental objections to such construction which, we believe, rule out any possibility that the Legislature could have intended it. The essential quality of evil or immorality inherent in crimes mala in se (murder, robbery, kidnapping, etc.) is incompatible with the notion that the actor could have been operating "under a mistaken belief that [his conduct] [did] not, as a matter of law, constitute an offense" (Penal Law § 15.20 [2] [a]). There are no policy or jurisprudential reasons for the Legislature to recognize a mistake of law defense to such crimes. On the contrary, it is not with such inherently evil crimes but with crimes which are mala prohibita — i.e., "the vast network of regulatory offenses which make up a large part of today's criminal law" (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; see, White, op. cit., 77 Colum L Rev 775, 784) — where reasons of policy and fairness call for a relaxation of the strict "ignorantia legis" maxim to permit a limited mistake of law defense.

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).

[403]

III

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 [1881]; 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 [404] "false and diversionary stratagem[]" or that "wrongminded individuals [could] contrive" an "infinite number of mistake of law defenses" (majority opn, at 392); for it is the very business of the courts to separate the true claims from the false. Such in terrorem arguments should have no more force here than similar objections which doubtless were voiced with equal intensity to the long-accepted defenses of justification, accident, mistake of fact, insanity, entrapment, duress and intoxication. As Justice Holmes wrote in commenting on John Austin's argument that permitting the mistake of law defense would present courts with problems they were not prepared to solve: "If justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try" (Holmes, The Common Law, at 48 [1881]).

IV

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 [1927], quoted in Morissette v United States, 342 US 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] [1] [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 AD2d 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. [405] Indeed, although the majority foresees "an infinite number of mistake of law defenses" (majority opn, at 392), New Jersey, which adopted a more liberal mistake of law statute in 1978, has apparently experienced no such adversity (no case construing that law is mentioned in the most recent annotation of the statute; see, dissenting opn, at 400, n 10).^[13] Nor is there any reason to believe that courts will have more difficulty separating valid claims from "diversionary stratagem[s]" in making preliminary legal determinations as to the validity of the mistake of law defense than of justification or any other defense.

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 [2] [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).

Order affirmed.

[1] "Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates 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 [1927], quoted in Morissette v United States, 342 US 246, 250, n 4).

[2] Kant, Philosophy of Law, at 13, 14, 28, 37 (Hastie trans 1887); cf., Bentham, Theory of Legislation, at 1-4 (Ogden ed 1931).

[3] Although "ignorantia legis" does not literally refer to mistake of law, the maxim is ordinarily understood, as we use it here, to include both ignorance and mistake of law (see, e.g., Jeffries, Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 208 [1985]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1485 [1977]; Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv L Rev 75, 81 [1908]).

[4] See, 2 Holdsworth, History of English Law, at 50-54, 258-259 (4th ed 1936); 3 Holdsworth, at 310-314, 371-375; United States v Barker, 514 F.2d 208, 228 (Bazelon, Ch. J., concurring).

[5] The societal interests mentioned in the literature include: facilitating judicial administration, encouraging knowledge and obedience to law and preservation of integrity of legal norms (77 Colum L Rev 775, 787). Justice Holmes, for example, stressed society's interests in deterrence, noting that acceptance of ignorance or mistake of law as a defense would encourage ignorance at the expense of the public good (see, Holmes, The Common Law, at 48 [1881]; Ellis v United States, 206 US 246, 257). John Austin justified "ignorantia legis" on the ground that if the defense were permitted, the courts would be confronted with questions about defendant's mental state which they could not solve (Austin, Lectures on Jurisprudence, at 496-501 [4th ed 1873]; see, White, op. cit., 77 Colum L Rev, at 785, 786; People v O'Brien, 96 Cal 171, 176, 31 Pac 45, 47 [1892]). For a discussion of the societal interest in maintaining primacy of the law as a reason for the common-law maxim, see, Hall, General Principles of Criminal Law, at 382, 383 (2d ed 1960).

[6] Professor LaFave notes the unfairness of never recognizing ignorance or mistake of law as a defense to offenses which are purely regulatory: "The early criminal law was `well integrated with the mores of the time', so that `a defendant's mistake as to the content of the criminal law * * * would not ordinarily affect his moral guilt' [n omitted]. But the vast network of regulatory offenses which make up a large part of today's criminal law does not stem from the mores of the community, and so `moral education no longer serves us as a guide as to what is prohibited' [n omitted]. Under these circumstances, where one's moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law never to recognize ignorance or mistake of the criminal law as a defense. Moreover, some would question whether it is desirable to characterize as criminal an individual who has not demonstrated any degree of social dangerousness, that is, a person whose conduct is not anti-social because (i) he reasonably thought the conduct was not criminal, and (ii) the conduct is not by its nature immoral" (LaFave and Scott, Substantive Criminal Law § 5.1, at 587-588; emphasis in original). Dissatisfaction with the traditional common-law rule totally prohibiting a mistake of law defense may be seen in decisions in New York and other jurisdictions recognizing the defense in certain circumstances even in the absence of an authorizing statute (see, e.g., People v Weiss, 276 N.Y. 384, 389 [permitting defense to negate an essential element of the People's proof]; see also, United States v Barker, 514 F.2d 208, 228 [Bazelon, Ch. J., concurring]; State v Cutter, 36 NJL 125; Ostrosky v State, 704 P2d 786 [Alaska Ct App]).

[7] By virtue of Penal Law § 265.20 (a) (1) (a) "peace officers", as defined in the CPL 1.20, are expressly exempt from criminal liability under Penal Law § 265.02. CPL 1.20 incorporates the definition of "peace officer" in CPL 2.10, which includes "correction officers of any state correction facility or of any penal correctional institution". Penal Law § 265.20 (a) was amended in 1980 to remove "peace officer" from (a) (1) (a) and to include "peace officer" in (a) (1) (c) (L 1980, ch 843, §§ 44, 45).

[8] The majority held that Penal Law § 265.20 (a) (1) (a) included only State correction officers. The dissenters agreed with Supreme Court that under the unambiguous language of CPL 2.10 defendant was a "peace officer" within the meaning of Penal Law § 265.20 (a) (1) (a) and exempt from prosecution under Penal Law § 265.02.

[9] It is suggested that Penal Law § 15.20 (2) (a) should be read as intended to apply when "it is determined that there was a mistake in the law itself." (Majority opn, at 390; emphasis in original.) Such interpretation is refuted by the language of the statute which provides a defense not when there is a "mistake in the law", but, under particular circumstances, when the defendant is mistaken, i.e., when he acts "under a mistaken belief that [his conduct] does not, as a matter of law, constitute an offense" (Penal Law § 15.20 [2] [a]).

[10] In addition to permitting defenses based on ignorance of the law and reasonable reliance on official statements afterward determined to be invalid or erroneous, the New Jersey statute provides a defense, under the following broad provision, when: "(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude" (NJ Stat Ann § 2C:2-4 [c] [3]).

[11] In Goetz (68 N.Y.2d 96, 109), we noted of the Model Penal Code provision on justification: "While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim." This difference in wording — involving the addition of the word "reasonable" to Penal Law § 35.15 — we found to be a "crucial" distinction between the Model Penal Code and the Penal Law (id., at 110).

[12] Model Penal Code § 2.04 (3) (b) (i) states: "A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: * * * (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment".

[13] New York's experience has been similar. It is stated that "for over 20 years of this statute's existence" (majority opn, at 388) no one has sought to predicate a defense on the statute. That history is significant not as demonstrating that Penal Law § 15.20 (2) does not plainly afford a mistake of law defense, as the majority suggests, but simply that, as in New Jersey, the enactment of the statutory defense has not resulted in an "infinite number of mistake of law defenses" (id., at 392).