This is a proceeding wherein the defendant is charged with Assault in the Third Degree (PL § 120.00), Harassment in the Second Degree (PL § 240.26), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01) and Unlawful Possession of an Air Pistol (AC § 10-131[b]).
A New York Criminal Lawyer said that these charges arise out of an incident that allegedly occurred at approximately 2:00 pm on 26 June 2010, inside an apartment on Walton Avenue in the Bronx. At that time, the People allege, defendant grabbed JP by her arm, pushed her against a wall and choked her, causing substantial pain to her arm and neck and a bruise to her arm.
Thereafter, on 29 July 2010, at approximately 11:00 am, Police Officer EC allegedly observed that defendant possessed one black handgun and one air pistol inside of his bedroom closet. Defendant allegedly stated, in sum and substance: “Cops found in closet which I had for protection never it… Just for protection… Bought it from an old high school friend on January 2010… I paid about $800 its [sic] black and there are some bullets maybe 3 or 4 in closet… They were never loaded I never fired it as well.”
Consequently, defendant moves to dismiss the weapons charge and the Administrative Code charge as facially unconstitutional and unconstitutional as applied. He also moves for suppression and preclusion of evidence.
A New York Criminal Lawyer said the court holds that neither PL § 265.01(1) nor AC § 10-131(b) violates the Second Amendment and neither is unconstitutional as applied to defendant.
The defendant relies on the rulings of District of Columbia v Heller and McDonald V City of Chicago. He argues that PL § 265.01(1) is an unconstitutional prohibition of his right to possess a firearm in his home for the purpose of self-defense. He argues that the statute fails the strict scrutiny test because the restrictions on gun ownership are overbroad and the state’s licensing scheme is arbitrary and capricious and it prevents indigent citizens from legally possessing firearms.
Further, a Queens Criminal Lawyer said that he also argues that New York City’s ban on the possession of air pistols and air rifles is unconstitutional, because an air pistol is a firearm that “can be effective” for self-defense in the home and because air pistols could be characterized as “arms” as that term is defined by Second Amendment jurisprudence. In his reply brief, defendant also claims that air pistols were in common use at the time of the Framers and should be permitted by New York City specifically because some people might choose a less-lethal handgun for self-defense in the home. Finally, defendant claims that these statutes are unconstitutional as applied to him.
In response, a Nassau County Criminal Lawyer said the People state that defendant has not overcome his heavy burden of proving the laws’ invalidity beyond a reasonable doubt. They argue that PL §§ 265.01 and 400.00 have already been found constitutional against Second Amendment challenges, and analyze why these decisions are correct and defendant’s arguments are incorrect. They also argue that air pistols are not firearms. Therefore, AC § 10-131(b) is valid when analyzed under either the rational basis or intermediate scrutiny test.
Finally, the Court has permitted the City of New York to file a brief as amicus curiae. The City defends its policies and procedures for obtaining a firearms license. It also argues that its ban on the possession of air pistols is constitutional, both because air pistols are not firearms and because, even if they were, the City’s restrictions on them do no implicate the core Second Amendment right identified by the Supreme Court.
The defendant relies upon the case of State of Columbia v Heller. In this case, the Supreme Court struck down District of Columbia statutes prohibiting the possession of handguns in the home and requiring lawfully-owned firearms to be kept inoperable. Rejecting the argument that the right “to keep and bear arms” was connected with militia service, the Court concluded that the Second Amendment codified an individual right to keep and bear arms for the core purpose of allowing law-abiding citizens to defend themselves, their families and their homes.
Two years later, in McDonald, the Court held that the Second Amendment right to keep and bear arms for self-defense is fully applicable to the states through the Fourteenth Amendment.
Following Heller and McDonald, federal district courts have rejected challenges to the firearms licensing schemes that were adopted in the District of Columbia and Chicago.
Penal Law § 265.01(1) states, in relevant part, that a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any firearm. Exemptions to this rule are listed in PL § 265.20, which provides, in relevant part in subsection (a) (3), that Section 265.01 shall not apply to possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter.
Penal Law § 400.00 (2) specifically provides for the issuance of a license for a pistol or revolver, other than an assault weapon or a disguised gun, for a householder to have and possess in his dwelling. The general statutory requirements for a license are that an applicant be 21 years of age or older, of good moral character, who has not been convicted of a crime or serious offense or had a license revoked, who is not disqualified by reason of mental illness or the existence of an order of protection, and concerning whom no good cause exists for the denial of the license.
Therefore, any person to whom a license has been issued may lawfully possess a firearm in his or her home.
People v Perkins ruled that PL §§ 265.01(1) and 400.00 are constitutional and do not run afoul of Heller.
Defendant argues that New York’s licensing requirements violate the Second Amendment because there is no exemption in PL § 265.01(1) for maintaining a firearm in the home for the purpose of self-defense and because, under PL § 400.00, those convicted of felonies or serious offenses cannot obtain licenses.
Defendant’s claim that there is no exemption in the statute for maintaining a firearm in the home for self-defense is simply wrong. Moreover, defendant never applied for a firearms license, as both the People and New York City point out and as defendant himself ultimately concedes, and he has not established that it would have been futile for him to do so. Thus, his arguments challenging New York’s firearms licensing rules are speculative at best, because he cannot show that any of the rules that he singles out would have prevented him from obtaining a firearms license had he actually applied for one.
Defendant’s claim that the availability of a firearms license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner is wrong. The statute provides an unsuccessful applicant with an administrative appeal process, and that decision can be challenged in court in a CPLR Article 78 proceeding. The discretion of a pistol licensing officer to deny an application is not unfettered, and the officials involved-including the NYPD licensing division-are bound by standards reviewable in a court of law.
Defendant cites no case for his proposition that New York’s firearms licensing scheme is unconstitutional because all applicants, even the indigent, must pay for the extensive background checks that are required before licenses are issued. Nor does he argue that the fees are unrelated to the costs of conducting the background checks. This case is simply unsuited to deciding the question of whether the application fees must be changed in light of Heller and McDonald, because defendant does not claim that the fees prevented him from applying for a license.
Finally, defendant has not demonstrated that the firearms licensing regulations are unconstitutional under the intermediate scrutiny test, which “the majority of courts to have considered this issue” have held “is the most appropriate standard of review to apply to” firearms regulations.
Defendant also argues that New York City’s ban on the possession of air pistols, AC § 10-131(b), violates the Second Amendment. Defendant’s argument overlooks crucial facts. The statutes at issue in both Heller and McDonald, banned possession and registration of firearms, and the Court in Heller emphasized that handguns are an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose of self-defense. In Parker v District of Columbia, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.
Defendant failed to cite facts from anywhere in the United States outside New York City to establish that American citizens overwhelmingly chose air guns for the core lawful purpose of self-defense rather than for sports and recreation.
Accordingly, the court holds that AC § 10-131(b) does not implicate the Second Amendment right to keep and bear arms. As such, the statute is presumptively valid and need only pass the rational basis test to withstand constitutional scrutiny.
To support his claims that PL § 265.01(1) and AC § 10-131(b) are unconstitutional as applied to him, defendant devotes two short paragraphs to support his claim. His arguments derive exclusively from his claims that the statutes are facially unconstitutional and from the fact that he has no criminal record. The court notes that both statutes give defendant clear notice of what is prohibited-namely, possession of an unlicensed firearm and possession of an air pistol-and explicit standards to the police for applying the statutes as held in People v. Stuart. Defendant has not established why the Penal Law and Administrative Code were unconstitutionally applied to him.
Based on the above mentioned reasons, defendant’s motion to dismiss the counts charging violations of PL § 265.01(1) and AC § 10-131(b) is denied in all respects.
The court grants defendant’s motion for a Huntley/Mapp/Dunaway/Payton hearing.
With regard to defendant’s motion to preclude impeachment evidence based on People v Sandoval and evidence-in-chief of prior bad acts based on People v Ventimiglia, this court refers to the trial court for hearings immediately prior to trial.
The court orders the People to comply with their disclosure obligations pursuant to CPL § 240.43 if they seek to introduce any such evidence.
Defendant requests a bill of particulars and discovery, as well as an order granting the same relief, or, in the alternative, preclusion of evidence. It appears from the People’s response and the court file that the People still have not responded to defendant’s bill and demand.
Accordingly, defendant’s motion to compel discovery is granted to the extent that the People are ordered to respond to defendant’s bill and demand within seven days of the date of this order.
Defendant’s application for an extension of time to file additional motions is denied, subject to the provisions of CPL § 255.20(3) regarding due diligence and good cause.
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