People v. Hughes

• Citation: 921 N.Y.S.2d 300,2011 N.Y. Slip Op. 03262,83 A.D.3d 960
• Parties: The PEOPLE, etc., respondent,v.Franklin HUGHES, appellant.
• Decision Date: 19 April 2011
• Court: New York Supreme Court Appellate Division

83 A.D.3d 960

921 N.Y.S.2d 300

2011 N.Y. Slip Op. 03262

The PEOPLE, etc., respondent,

v.Franklin HUGHES, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 19, 2011.

Michael A. Fiechter, Bellmore, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Richard R. Martell of counsel), for respondent.JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.), rendered July 8, 2009, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant asserts that his convictions of criminal possession of a weapon in the second degree ( see Penal Law § 265.03[3] ), and criminal possession of a weapon in the third degree ( see Penal Law § 265.02[1] ), must be reversed because the statutes under which he was convicted violate the United States Constitution as well as Civil Rights Law § 4. Contrary to the People's contention, under the particular circumstances of this case, the defendant properly preserved his constitutional challenges for appellate review by raising them in his post-verdict motion pursuant to CPL 330.30 ( cf. People v. Gibian, 76 A.D.3d 583, 587, 907 N.Y.S.2d 226; see generally People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233).

The defendant correctly observes that, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, the Supreme Court of the United States (hereinafter the Supreme Court) held that the Second Amendment to the United States Constitution confers a constitutionally protected individual right to keep and bear arms for self-defense in the home. Moreover, the Supreme Court has held that this Second Amendment right is “fully applicable to the States” ( McDonald v. City of Chicago, ––– U.S. ––––, ––––, 130 S.Ct. 3020, 3026, 177 L.Ed.2d 894). However, the rights conferred under the Second Amendment are not unlimited ( see District of Columbia v. Heller, 554 U.S. at 626, 128 S.Ct. 2783). For example, the Supreme Court stated in Heller that nothing in that 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 and qualifications on the commercial sale of arms” ( id. at 626–627, 128 S.Ct. 2783).

Here, the challenged statutes are Penal Law §§ 265.02(1) and 265.03(3). Penal Law § 265.02(1) provides that “[a] person is guilty of criminal possession of a weapon in the third degree when ... [s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of § 265.01, and has been previously convicted of any crime” (Penal Law § 265.02[1] ). Penal Law § 265.03(3) provides that “[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business” (Penal Law § 265.03[3] ). Thus, these sections, as relevant here, criminalize the possession of a firearm ( see Penal Law § 265.02[1] ) or a loaded firearm ( see Penal Law § 265.03[3] ), even in the home, where the defendant has previously been convicted of “any crime.” Critically, this is not an absolute ban on the possession of firearms. We agree with the Appellate Division, Third Department, that, “[u]nlike the statute at issue in Heller, 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” ( People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209). Instead, as relevant to the discussion here, the statutes represent a policy determination by the Legislature that “an illegal weapon is more dangerous in the hands of a convicted criminal than in the possession of a novice to the criminal justice system” ( People v. Montilla, 10 N.Y.3d 663, 666, 862 N.Y.S.2d 11, 891 N.E.2d 1175)....