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An incident allegedly occurred inside an apartment

The defendant is charged with Assault, Harassment; Criminal Possession of a Weapon and Unlawful Possession of an Air Pistol. The charges arise out of an incident that allegedly occurred inside an apartment. At that time, the People allege that the defendant grabbed the woman 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, a police officer allegedly observed that the defendant possessed one black handgun and one air pistol inside of his bedroom closet. The defendant allegedly stated, in sum and substance that the cops found a gun in the closet for protection. The gun was never loaded and was never fired.

The 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. For the reasons that follow, the County Court holds that neither Penal Law (PL) nor Administrative Code (AC) violates the Second Amendment and neither is unconstitutional as applied to the defendant.

The People respond that the defendant has not overcome his heavy burden of proving the laws’ invalidity beyond a reasonable doubt. They argue that Penal Law have already been found constitutional against Second Amendment challenges, and analyze why these decisions are correct and the defendant’s arguments are incorrect. They also argue that air pistols are not firearms; therefore, Administrative Code 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.

Penal Law states, in relevant part, that a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any firearm. Penal Law 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. Thus, any person to whom a license has been issued may lawfully possess a firearm in his or her home. Indeed, the City affirms that, in 2009, there were 1,141 new applications for premise residence licenses, and 826 of these applications were approved.

The defendant argues that New York’s licensing requirements violate the Second Amendment for a number of reasons. He claims over breadth, because there is no exemption for maintaining a firearm in the home for the purpose of self-defense and because, under PL, those convicted of felonies or serious offenses cannot obtain licenses. He argues that the licensing scheme is arbitrary and capricious, because the availability of a gun license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner. He argues that requiring all successful applicants to be of good moral character’ is too vague to withstand any level of constitutional scrutiny. Without actually acknowledging that decisions of the Commissioner are reviewable by the courts, defendant then argues that the review process is infirm because the Appellate Divisions have never required the N.Y.P.D. to present anything more than a rational basis for denying a gun license. Finally, he claims that the licensing scheme unconstitutionally prevents indigent citizens from legally possessing firearms because of the cost of the non-refundable application fee.

The 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, the defendant never applied for a firearms license, as both the People and New York City point out and as the 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. A person to whom a statute properly applies can’t obtain relief based on arguments that a differently situated person might present. A closely related principle is that constitutional rights are personal and may not be asserted vicariously.

To Be Con’t………

When private individuals find ways to protect themselves in their own homes, it shows that they don’t feel safe and they don’t trust the government is doing its job. If you want to be defended by the Kings County Criminal Lawyer or the Kings County Criminal Defense Attorney, call Stephen Bilkis and Associates.

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