People v. Foster

• Decision Date: 15 December 2010
• Citation: 915 N.Y.S.2d 449,30 Misc.3d 596
• Parties: The PEOPLE of the State of New York v. Brain FOSTER, Defendant.
• Court: New York Criminal Court

915 N.Y.S.2d 449

30 Misc.3d 596

The PEOPLE of the State of New York

v.Brain FOSTER, Defendant.

Criminal Court, City of New York, Kings County.

Dec. 15, 2010.

ADA Viviane Dussek, King's County District Attorney's Office, Brooklyn, for the People.

Jill A. Waldman, Esq., The Legal Aid Society, Brooklyn, for the Defendant.

GEORGE A. GRASSO, J.

Defendant is charged with two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1]-a class A misdemeanor.). The accusatory instrument alleges that defendant, along with his co-defendant, possessed two loaded nine millimeter firearms. The firearms were allegedly found inside defendant's home. It is further alleged that defendant failed to apply for a license to legally possess the firearms at issue. Defendant now moves to dismiss the accusatory instrument on the ground that Penal Law § 265.01(1) violates the Second Amendment of the United States Constitution. Defendant's motion is made pursuant toCPL 210.25(3), a statute that is applicable to the dismissal of indictments on constitutional grounds. Notwithstanding, this court will treat defendant's motion to dismiss as if it was made pursuant to CPL 170.35(1)(c), the statute that is applicable to the dismissal of misdemeanor accusatory instruments on constitutional grounds.

Defendant's argument is threefold. First, defendant argues that in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that a local statute that banned handguns kept in the home for immediate use and self-defense violated the Second Amendment of the United States Constitution. Second, defendant contends that the holding in Heller was made applicable to the states based on the Court's recent decision in McDonald v. City of Chicago, --- U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Finally, it is defendant's position that New York State's licensing scheme, under Penal Law § 400.00(6) and 38 RCNY 5, is arbitrary and capricious and therefore, violates the Second Amendment.

In their response, the People argue, in reliance on Prayze FM v. Federal Communications Commission, 214 F.3d 245 (2000), that defendant, having failed to apply for a firearm license, consequently has no standing to challenge the constitutionality of Penal Law § 265.01. This court finds that the rationale inPrayze is not applicable to the instant matter. The controversy in Prayze, upon which the issue of standing is raised, involves regulatory litigation between a corporate radio station and the Federal Communications Commission. Here, the defendant is charged in a criminal action under a specific statute, to wit, Penal Law § 265.01. In this court's view, under circumstances where a defendant in a criminal case challenges the constitutionality of a statute as part of his defense, an inherent standing is triggered to review the constitutionality of the statute that defendant is charged under. Thus, this court finds that the criminally charged defendant has standing to challenge the constitutionality of the statute under which he is charged. People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003); see, People v. Taylor, 9 N.Y.3d 129, 848 N.Y.S.2d 554, 878 N.E.2d 969 (2007).

This court rejects as being without merit, defendant's argument that Penal Law § 265.01 violates the Second Amendment of the United States Constitution. The Court stated in Heller, "like most rights, the right secured by the Second Amendment is not unlimited.... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms." Heller, 554 U.S. at 627, 128 S.Ct at 2816-2817. The Court made clear that their list of "presumptively lawful regulatory measures" are only examples and is not exhaustive. Id. at 2817.

Notwithstanding the Supreme Court having made the holding of Heller applicable to the states by virtue of its decision in McDonald, the instant case must result in a manner that upholds the constitutionality of Penal Law § 265.01. In this court's view, a 2009 decision rendered by the Appellate Division, Third Department, is directly on point. In its decision, the Court stated that, "[w]e reject defendant's contention that the statutes under which he was convicted violate the Second Amendment ... [u]nlike, the statute at issue inHeller,Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a severe restriction' improperly infringing upon defendant's Second Amendment rights. Moreover, in our view, New York's licensing requirement remains an acceptable means of regulating the possessions of firearms ( see People v. Morrill, 101 A.D.2d 927 [1984]; People v. Ferguson, 21 Misc.3d 1120(A), [N.Y. City Crim. Ct.2008] ) and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner ( see District of Columbia v. Heller, 554 U.S. at [631], 128 S.Ct. at 2819)." People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209 (3rd Dept. 2009).

Defendant stated in his motion that, the denials of [New York City] gun licenses "will be upheld unless they are arbitrary and capricious'." Defendant's Memorandum of Law. Notably, defendant's view is consistent with the standard of review held in both Heller and Perkins. Defendant's assertion recognizes that judicial review of a New York City gun licensing denial has been in accordance with the authoritative precedence mandated by the Courts. In Heller, the statutes at issue in the District of Columbia made it a crime to carry a firearm that was not registered and prohibited the registration of handguns (D.C.Code §§ 7-2501.01[12], 7-2502.01[a], 7-2502.02[a][4] [2001] ). Additionally, "District of Columbia law also require [d] residents to keep their lawfully owned firearms, such as registered long guns, unloaded and disassembled or bound by a trigger lock or similar device' unless they are located in a place of business or are being used for lawful recreational activities." District of Columbia v. Heller, 554 U.S. at 575, 128 S.Ct. at 2788. In Heller, the Court held that, "the law totally bans handgun possession in the home." Id. at 2817. Applying the standard set forth in Heller, the Court held in McDonald, "that the Second Amendment is fully applicable to the States." McDonald v. City of Chicago, ---U.S. ----, 130 S.Ct. at 3026. In McDonald, the Court held a City ordinance unconstitutional that provided, "that [n]o person shall ... possess ... any firearm unless such person is the holder of a valid registration certificate for such firearm.' Chicago, Ill., Municipal Code § 8-20-040(a) (2009). The Code then prohibits registration of most handguns (emphasis added), thus effectively banning handgun possession by almost all private citizens (emphasis added) who reside in the City. § 8-20-050(c). Like Chicago, Oak Park makes it unlawful forany person to possess ... any firearm,' a term that includes pistols, revolvers, guns and small arms ... commonly known as handguns.' Oak Park, Ill., Municipal Code §§ 27-2-1 (2007), 27-1-1 (2009)." Id.

As the Court held in Perkins, this court now holds subsequent to the decision in McDonald, that New York's licensing scheme for the regulation of firearm possession does not improperly infringe upon the Second Amendment of the United States Constitution. The People's Affirmation in Opposition to Motion to Dismiss asserted that a significant percentage of premise license applications resulted in premise residence licenses in New York City. People's...