Can the allegation of possession of a defaced weapon be sustained?

The allegation of possession of a defaced weapon, as set forth in the petition, cannot apply herein, if, in fact the weapon in evidence is not a firearm. The definition of 'deface' can only apply to a weapon defined as a 'firearm' or 'machine-gun'. (Penal Law Section 265.02(3)). Further, merely sawing off a portion of a weapon is not an act sufficient within itself to fall within the definition of 'deface' as set forth in Penal Law Section 265.00(7). See People v. Foster, 42 A.D.2d 1046, 348 N.Y.S.2d 639. Therefore, the charges of possession, of a firearm and possession of a defaced firearm are not sustained. The weapon herein falls within the definition of a shotgun as provided in Penal Law Section 265.00(12).