People v. Jones

CourtNew York Court of Appeals
Writing for the CourtSMITH
Citation2013 N.Y. Slip Op. 07655,22 N.Y.3d 53,977 N.Y.S.2d 739,999 N.E.2d 1184
Decision Date19 November 2013
PartiesThe PEOPLE of the State of New York, Respondent, v. Harold JONES, Appellant.

?22 N.Y.3d 53
999 N.E.2d 1184
977 N.Y.S.2d 739
2013 N.Y. Slip Op. 07655

The PEOPLE of the State of New York, Respondent,
v.
Harold JONES, Appellant.

Court of Appeals of New York.

Nov. 19, 2013


Affirmed.


Robert S. Dean, Center for Appellate Litigation, New York City (David J. Klem of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (David E. Stromes and Patrick J. Hynes of counsel), for respondent.


OPINION OF THE COURT

SMITH, J.

[999 N.E.2d 1185]

Defendant was charged with criminal possession of a weapon in the second degree for possessing a loaded firearm. The alleged possession occurred in his home, but defendant had previously been convicted of a crime. He claims that under Penal Law § 265.03(3) he is entitled, despite his prior conviction, to rely on the so-called “home or business” exception in the definition of second degree weapon possession. We reject that argument and hold that defendant's indictment for second degree possession was proper.

I

Defendant was charged in two indictments with a variety of crimes, but only a single count is now before us. That count was based on evidence before the grand jury that a loaded gun was found in a bathroom; the bathroom, it is now conceded, was part of defendant's home. The indictment alleges simply that defendant committed criminal possession of a weapon in the second degree in violation of Penal Law § 265.03(3) in that he “possessed a loaded firearm.” With the indictment, the People filed a special information, alleging that defendant had previously been convicted of criminal possession of a controlled substance in the first degree.

Supreme Court, concluding that possession of the weapon in defendant's home did not constitute second degree possession, reduced the charge to third degree possession. On the People's appeal, the Appellate Division reversed and reinstated the

[999 N.E.2d 1186]

second degree charge ( People v. Jones, 103 A.D.3d 411, 959 N.Y.S.2d 73 [1st Dept.2013] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ), and we now affirm.

II

Before reaching the merits of the appeal, we must consider a jurisdictional issue. Defendant says that the People's appeal to the Appellate Division was untimely, and that therefore the Appellate Division could not consider it. He says that the appeal was not taken “within [30] days after service upon [the People] of a copy” of Supreme Court's order reducing the second degree count to third degree possession (CPL 460.10[1][a] ).

Defendant's theory is that the 30–day time to appeal began running when, according to defendant's brief, Supreme Court “provided copies” of its order “to the parties in open court.” In fact, the record does not show that the court did any such thing. At the transcript page defendant cites, the court only says that there is “a decision on file.” But even if the factual premise of defendant's argument were correct, his argument would have no merit. We have interpreted CPL 460.10(1)(a) “to require prevailing party service”—not just the handing out of an order by the court—“to commence the time for filing a notice of appeal” ( People v. Washington, 86 N.Y.2d 853, 854, 633 N.Y.S.2d 476, 657 N.E.2d 497 [1995] ). Here, it is undisputed that defendant, the prevailing party at Supreme Court, never served the order on the People.

III

On the merits, this appeal requires us to interpret the “home or business” exception to the second degree weapon possession statute, Penal Law § 265.03(3). Under that statute:

“A person is guilty of criminal possession of a weapon in the second degree when: ...

“(3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one ... 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.”

Section 265.02(1), to which the above quoted language refers, defines criminal possession of a weapon in the third degree. Under Penal Law § 265.02(1), a person is guilty of third...

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