The defendant has been charged with assault in the third degree, harassment in the second degree, criminal possession of a weapon in the fourth degree, and unlawful possession of an air pistol.
The defendant has moved to dismiss the weapons charge and the administrative code charge as facially unconstitutional and unconstitutional as applied. He is also moving to suppress and preclude evidence.
The charges against the defendant stem from an incident that allegedly occurred on the 26th of June inside an apartment located on Walton Avenue in the Bronx. The People allege that the defendant grabbed a woman by her arm, pushed her against a wall and choked her after stalking her.. This action caused the victim a substantial amount of pain to her arm and to her neck. There was a large bruise on her arm as a result.
Three days later, an officer allegedly observed that the defendant owned a black gun and an air pistol that were found inside the bedroom closet.
The defendant allegedly stated that the cops found the gun in the closet and that he had it for protection and that he had never shot it. He said he bought it from an old high school friend back in January. He states that he paid around $800 for the gun and there are maybe three or four bullets with it in the closet. The bullets were never loaded and I never fired it either.
The defendant argues that the weapons charge is an unconstitutional prohibition of his right to possess a firearm in his home for the purpose of self-defense. While the defendant concedes that the Supreme Court has left open the right of states to regulate the sale, possession, and use of firearms, he states that the statute is overbroad and prevents indigent citizens from legally possessing firearms.
The defendant further argues that the ban on the possession of air pistols by the city is unconstitutional because an air pistol is a firearm that can be effective for self-defense in the home and that air pistols can be characterized as arms as the term is defined by the second amendment.
The defendant claims that these statutes are unconstitutional as they have been applied to him.
Court Discussion and Decision
The court has reviewed the arguments made by the defendant and has determined that they are without merit. His constitutional rights have not been violated and the statutes as applied are not unconstitutional.
The defendant has also made a motion in regard to a Huntley/Mapp/Dunaway/Payton hearing. He is requesting this type of hearing be held in regard to certain evidence in the case. The court will grant the hearing. A bill of particulars will be provided to the defendant and the hearing will be scheduled.
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