People v. Adams

• Decision Date: 18 September 2002
• Citation: 747 N.Y.S.2d 909,193 Misc.2d 78
• Court: New York Supreme Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>JOHN ADAMS, Defendant.

193 Misc.2d 78
747 N.Y.S.2d 909

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
JOHN ADAMS, Defendant.

September 18, 2002.

Roger Adler for defendant.

Charles J. Hynes, District Attorney (Roger McCready of counsel), for plaintiff.

Gregory Kuziw for Department of Probation.

[193 Misc.2d 79]

OPINION OF THE COURT

JOHN M. LEVENTHAL, J.

The defendant probationer applies, through the Probation Department, for a limited certificate of relief from disabilities (hereinafter called CRD) (Correction Law § 702) which would authorize him "to apply for hunting licenses and use long guns—solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons." The defendant has completed his community service with high praise from the office where he had worked and is a first time offender who would otherwise be eligible for a CRD.^[1] (Correction Law § 700.) He continues to serve his probationary sentence.

This application for a CRD requires the court to consider three federal criminal statutes, contradictory United States Court of Appeals decisions, contradictory New York lower court decisions, and novel issues apparently not decided by any court.

Background

On February 22, 1997, the defendant, after a parental visit, brought his children directly to his then wife (now former wife) in contravention to a court order of protection (hereinafter COOP). Thereafter, a verbal and physical confrontation occurred between the defendant and his wife. The COOP provided that the defendant was to return his children to the local police station.

The defendant was indicted and tried for crimes involved in this incident and another.

On March 24, 1999 after a jury trial, the defendant was found guilty of assault in the second degree (Penal Law § 120.05 [6]), two counts of assault in the third degree (Penal Law § 120.00 [1]), and two counts of criminal contempt in the first degree (Penal Law § 215.51 [b] [v], [vi]).

After trial and prior to sentence, defendant successfully moved this court to set aside the guilty verdicts as to all assault counts (CPL 330.30). This court held that "the evidence adduced at trial was devoid of legal sufficiency to support the verdict finding that the defendant caused `physical injury'" to

[193 Misc.2d 80]

his former wife and former father-in-law (see People v Adams, NYLJ, Sept. 23, 1999, at 28, col 3). On September 15, 1999, the defendant was sentenced on the criminal contempt in the first degree convictions to five years' probation (the first year to year and one half on intensive supervised probation) and included, as a special condition, 500 hours of community service. The court also issued a COOP which is to expire on September 14, 2004.

New York's Felon-in-Possession Law

New York bars the issuance to or renewal of a firearm license to a person who has been convicted of a "felony" (Penal Law § 400.00 [1], [11]; see Penal Law § 10.00 [5] [for definition of felony]; see also Penal Law § 265.00 [17]).

This statutory bar applies to firearms as defined in Penal Law § 265.00 (3). A rifle is not a firearm unless "one of the barrels [is] less than sixteen inches in length" (Penal Law § 265.00 [3] [c]). Thus, there is no prohibition against a felon or a person who is under a COOP from possessing a hunting rifle (CPL 530.14; Penal Law § 400.00 [1], [11]; see Matter of Alarie, 168 Misc 2d 329). Therefore, a CRD is not necessary for the possession of a hunting rifle under New York State law (id.).

Issues to be Considered in Deciding Whether to Sign a CRD

The CRD may be helpful to eliminate criminal liability for numerous federal weapon possession crimes. In order to determine whether to issue a CRD, the court must decide whether the issuance of a CRD would remove the federal bar against possession of a firearm. If the defendant still could not lawfully possess the hunting rifle even after the court's issuance of a CRD, then the court would be deceiving the defendant as to the legality of his possession of a weapon (see Yanovitch v United States, 985 F Supp 17, 22), possibly be violating the Due Process Clause of the US Constitution (see United States v Beavers, 206 F3d 706, 710) and performing a worthless act. Under those circumstances, the court believes that it would be prohibited from issuing the CRD. Even if permitted, the court would not and should not perform a useless act.

Federal Felon-in-Possession Law

It is unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce any firearm or ammunition, or to receive any firearm or ammunition which has been

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shipped or transported in interstate or foreign commerce (18 USC § 922 [g] [1]).

The "term `firearm' means * * * any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive" (18 USC § 921 [a] [3]). The term "firearm" includes hunting rifles (Scarborough v United States, 431 US 563, 574-575; see United States v Ramirez-Rios, 270 F3d 1185; United States v Clingan, 254 F3d 624; Federal Sentencing Guidelines § 2K2.1 [b] [2]).^[2]

The court must now determine what possession "in or affecting commerce" means.

Congress' commerce authority (US Const, art I, § 8) includes the power to regulate those activities having a substantial relation to interstate commerce. (United States v Lopez, 514 US 549, 558-559.) "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." (Lopez, 514 US at 560; United States v Morrison, 529 US 598, 610.)

"There is no question that the market in firearms generally is heavily interstate—indeed, international—in character. E.g., 18 U.S.C. § 922(q)(1)(D) * * * S.Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2164-65 (noting testimony that `50 to 80 percent of the crime guns that are confiscated each year are foreign imports' and that `90 out of every 100 crime guns confiscated in Detroit are not purchased and registered in Michigan and that the prime source of these crime guns is by purchases in neighboring Ohio, whose controls on firearms are minimal'). Because of the ease of moving weapons across state and national lines, Congress has rationally concluded that it cannot rely on the states to control the market in these devices by themselves. See Omnibus Crime Control and Safe Streets Acts of 1968, Pub.L. No. 90-351, § 901(a)(1), 82 Stat. 197, 225 (`[T]here is a widespread traffic in firearms moving in or other affecting interstate or foreign commerce * * *')." (United States v Haney, 264 F3d 1161, 1169.)

In Scarborough (431 US at 575), the Supreme Court held that a predecessor statute of 18 USC § 922 (g) (1) required no more than a minimal nexus that the firearm has been, at some time, in interstate commerce. The federal appellate courts have

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consistently...