People v. Francis

• Decision Date: 22 July 1974
• Parties: The PEOPLE, etc., Respondent, v. Charles FRANCIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 148

358 N.Y.S.2d 148

45 A.D.2d 431

The PEOPLE, etc., Respondent, v. Charles FRANCIS, Appellant.

Supreme Court, Appellate Division, Second Department.

July 22, 1974.

Lawrence Hochheiser, Brooklyn, for appellant.

Nicholas Ferraro, Dist. Atty. (Bruce E. Whitney, Howard Beach, of counsel), for respondent.

Before HOPKINS, Acting P.J., and LATHAM, SHAPIRO, CHRIST and BRENNAN, JJ.

BRENNAN, Justice.

The defendant was indicted for possession of a weapon as a class D felony on the charge that he had possessed an operable revolver and a quantity of ammunition and that such possession was not in his home or place of business. On January 2, 1973 he was allowed to plead guilty to attempted possession of a weapon as a class E felony in satisfaction of the indictment. On February 20, 1973 he was sentenced to a six-month term and he was incarcerated until May 28, 1973 when he was released on bail with the consent of the District Attorney.

The principal question presented is whether the firearm here possessed was in the defendant's 'place of business' within the exception set forth in subdivision 2 of section 265.05 of the Penal Law. ¹ Subsidiary questions presented are (1) whether the court's stated policy at the time of sentence to impose a term of incarceration in such cases was improper in the light of his previous statement, at the time of accepting the guilty plea, that he would make no commitment as to sentence prior to reading the probation report; and (2) whether the sentence imposed was excessive.

The facts are not in dispute. The defendant, an employee, was arrested on September 1, 1972 while on his job in the United States Post Office attached to the John F. Kennedy Airport. Special Police Officer Smart alleged that he had been informed that the defendant was carrying a gun. When the officer approached the defendant, he observed a bulge on his 'left side and removed therefrom in holster a .38 cal. Smith and Wesson revolver'. The officer arrested the defendant and, upon a search of his person, discovered five rounds of live ammunition which could be used to discharge this firearm. The defendant had no permit for the gun.

We hold that the 'place of business' exception to the statute should not be extended to cover the situation here presented. However, in the light of the defendant's previous unblemished recod, we believe the interest of justice warrants reducing the sentence to the time already served.

Disposing of the subsidiary questions at the outset, we do not think the trial court was under any legal obligation to conduct a 'Serrano' inquiry. As indicated, it was undisputed that the defendant had possessed the .38 caliber revolver and ammunition concealed upon his person in his place of employment, a United States Post Office, and that he had no permit to carry the gun. Under these circumstances, there was nothing further for the trial court to inquire about. In accepting the guilty plea to attempted possession of a weapon as a felony the trial court concluded, and we believe correctly, that such locale was not a 'place of business' within the statutory exception. Further, we deem the trial court's statement of 'policy' at the time of sentence to be nothing more than an unhappy choice of language which had no compulsive effect upon his ultimate sentence.

We recognize that three lower court decisions have held that a taxicab is a taxi driver's place of business within the purview of the statute (People v. Santana, 77 Misc.2d 414, 354 N.Y.S.2d 387; People v. Santiago, 74 Misc.2d 10, 343 N.Y.S.2d 805; People v. Anderson, 74 Misc.2d 415, 344 N.Y.S.2d 15). However, this court has recently held to the contrary in People v. Levine, 42 A.D.2d 769, 346 N.Y.S.2d 756. In Levine, the record on appeal discloses that the defendant was a licensed taxicab driver operating the licensed New York City taxicab of his employer. He became involved in an argument with another motorist and in the course of the embroilment displayed a .22 caliber pistol to the other motorist who turned out to be an off-duty patrolman. Levine was indicted for reckless endangerment in the first degree and possession of weapons and dangerous instruments and appliances as a felony. He pleaded guilty to attempted possession of weapons and dangerous instruments and appliances, as a felony, and was sentenced to an indeterminate term not to exceed four years. His main contention on appeal was that the trial court had erred as a matter of law when it held that a taxicab was not a place of business. In a memorandum decision this court modified the judgment to the extent of reducing the sentence to a five-year term of probation, but otherwise affirmed the judgment of conviction.

The Superior Court of New Jersey, Appellate Division, recently held in State of New Jersey v. Valentine, 124 N.J.Super. 425, 307 A.2d 617, that a statutory exception permitting one to keep or carry about a firearm at his place of business or dwelling would not be extended to include the manager of a bar owned by another. In Valentine, the defendant was convicted of possession of a revolver--carrying a weapon on his person in a public place without a permit in violation of N.J.S.A. 2A:151--41. There was testimony as to the defendant's employment status as manager of the bar and the nature of his duties, i.e., that as manager he was in complete charge of the business from 6 P.M. to 2 A.M. when the owner was not present. The court allowed that since a small businessman could defend his premises by armed force, he could delegate this power to one he had left in charge of the premises (cf. dictum in State v. Bloom, 11 N.J.Misc. 522, 167 A. 221). Inupholding the conviction in Valentine (supra) the Appellate Division stated (124 N.J.Super. p. 427, 307 A.2d p. 619):

'However, the overriding philosophy of our Legislature is to limit the use of guns as much as possible. The bar was not defendant's business. He held no proprietary interest therein. By extending the statutory exception to include a manager, the door is opened to a multiplicity of situations where the term manager might be invoked to sanction possession of a weapon otherwise proscribed by N.J.S.A. 2A:151--41. Moreover, there was not a scintilla of evidence produced that the revolver was acquired by Kozlow (owner) and in the possession of defendant in connection with the operation of the business. The motion for a judgment of acquittal was properly denied' (bracketed word supplied).

In another recent case the Supreme Court of Florida, in Peoples v. State of Florida, 287 So.2d 63, reversed a judgment of conviction for carrying a concealed firearm. In Peoples, however, there was unrebutted butted testimony that the defendant was a resident and an employee of the business establishment (grocery store) in which he was arrested; and that he had been pursuing, on the property, two men whom he had caught attempting to commit a felony. Additionally, on cross-examination, the owner of the business was asked if the defendant was authorized to be a security man. The owner responded, "I paid for the gun" (p. 66). The opinion stated that the owner's testimony implied that the defendant had the authorization to protect the premises.

Generally speaking, we do not believe that the 'place of business' exception in the statute should be extended to cover the situation here presented. The possessor of a firearm 'in such person's home or place of business' is given the benefit of having the possession reduced from a felony to a misdemeanor for the apparent reason that the Legislature concluded the firearm was to be used at such locale in defense of the possessor's person and property.

It is clear that the defendant at bar was not delegated by his superiors to protect any property of the United States Government. The arresting Special Police Officer was available for security purposes. While not for a moment departing from our holding in Levine, 42 A.D.2d 769, 346 N.Y.S.2d 756, Supra, any attempt to analogize a taxicab with a United States Post Office must fail. In a taxicab the driver has at least exclusive appropriation and control. This is not so in the Post Office, where the employee (in the defendant's status) has no authority or delegation to carry a concealed weapon. The defendant's possession of the gun in the Post Office was not in any way in furtherance of any function or duty being performed by him for the postal service. Further, it appears from the sentence minutes that the defendant, at that time, did not justify why he carried the gun. There is, however, some intimation in the probation report that he carried the gun to protect himself while traveling to and from his place of employment.

We are not in accord with the liberal construction of the statute proposed by the minority. Such reasoning, pursued to its ultimate conclusion, seemingly would condone the act of countless numbers of employees of large corporations and governmental agencies in carrying illegal, concealed, operable guns at their places of employment, subject only to a charge of a misdemeanor rather than a felony. The foreseeable consequences are foreboding. It is inconceivable that this was the intention of section 265.05 of the Penal Law. To the contrary, the statute is designed to limit the use of guns, ever mindful of the fact that 'concealed weapons present an immediate and real danger to the public' (cf. People v. Moore, 32 N.Y.2d 67, 72, 343 N.Y.S.2d 107, 113, 295 N.E.2d 780, 784).

While the conviction for attempted possession of a weapon as a felony should stand, the interest of justice warrants reducing the sentence to the time already served, in the light of the defendant's prior unblemished record.

Accordingly, the judgment should be modified, as a matter of discretion in the interest of justice, by reducing the sentence to the time served; and, as so modified, the judgment should be affirmed.

Judgment of Supreme Court, Queens...