People v. McWilliams

• Decision Date: 18 October 1978
• Citation: 96 Misc.2d 648,409 N.Y.S.2d 610
• Parties: PEOPLE of the State of New York v. Earl D. McWILLIAMS, Defendant.
• Court: New York County Court

Page 610

409 N.Y.S.2d 610

96 Misc.2d 648

PEOPLE of the State of New York v. Earl D. McWILLIAMS, Defendant.

Nassau County Court.

Oct. 18, 1978.

Denis Dillon, Dist. Atty., Nassau County, Mineola, for the people.

Bernard Berlly, Laurelton, for defendant.

RAYMOND HARRINGTON, Judge.

The defendant has been charged by a Nassau County Grand Jury with one count of Criminal Possession of a Weapon in the Third Degree, a Class D Felony (Penal Law § 265.02). The indictment reads as follows:

"The defendant, Earl D. McWilliams, on or about the 24th day of February, 1978, in the County of Nassau, State of New York, had in his possession a firearm, to wit: revolver, loaded with ammunition, said possession not being in the defendant's home or place of business."

By this motion, the defendant seeks an order of this Court granting several forms of pre-trial relief, including an order, pursuant to CPL 210.20, granting inspection of the Grand Jury minutes, and upon such inspection, dismissing the indictment on the grounds that Grand Jury proceeding was defective and that evidence presented to the Grand Jury was legally insufficient. (CPL 210.20, 210.30, 210.35). Based upon the disposition of that segment of the defendant's motion, the defendant's remaining requests are denied as moot.

As noted earlier, the defendant is accused of violating Penal Law § 265.02. That section reads, in pertinent part, as follows:

P.L. § 265.02

"A person is guilty of criminal possession of a weapon in the third degree when:

4) He possesses any loaded firearm. Such possession shall not, * * * constitute a violation of this section if such possession takes place in such person's home or place of business. * * * "

The evidence initially presented to the Grand Jury, if uncontradicted, would tend to establish that on February 24, 1978, a loaded .22 calibre handgun was in the possession of the defendant. At the time of his arrest, the defendant was seated in an automobile.

Following presentation of this evidence, the District Attorney charged the Grand Jury as follows:

"You may additionally consider as against Earl D. McWilliams, a charge of Criminal Possession of a weapon in the third degree. 'A person is guilty of criminal possession of a weapon in the third degree when he possesses any loaded firearm.' "

In response to further questions, the District Attorney again charged the jury with regard to the weapons offense:

"Let me read the section of the possession of the weapon.

Criminal possession of a weapon in the third degree:

'A person is guilty of criminal possession of a weapon in the third degree when he possess (sic) an firearm.' "

The District Attorney then left the room for a brief interval until summoned by the foreman of the Grand Jury. The Grand Jury wished to question the People's witness further. The only information elicited relevant to this application was the fact that the automobile operated by the defendant was a taxicab. Following this last set of questions and without any further charge by the District Attorney, the Grand Jury retired and returned this indictment.

The fact that the defendant was operating a taxicab is relevant to this inquiry. The statute the defendant is charged with violating contains what has been characterized as an "exception." That is, if the loaded weapon is possessed in the defendant's home or place of business, absent a previous conviction of a crime, no felony offense is committed. The People then are relegated to the lesser included offense of Criminal Possession of a Weapon in the Fourth Degree, a Class A Misdemeanor. (P.L. § 265.01). (But see People v. Ali, 36 N.Y.2d 880, 372 N.Y.S.2d 212, 334 N.E.2d 11). The Appellate Division, Second Department, explained the statutory scheme in this way:

"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. * * * ' "

(People v. Francis, 45 A.D.2d 431 at 434, 358 N.Y.S.2d 148 at 152).

There is considerable debate as to whether the "place of business exception" should be construed to include a taxicab. At least three lower court decisions have so interpreted the provision. (People v. Santana, 77 Misc.2d 414, 354 N.Y.S.2d 387; People v. Anderson, 74 Misc.2d 415; People v. Santiago, 74 Misc.2d 10, 343 N.Y.S.2d 805). Other courts have more strictly limited the exception. (Cf. People v. Fearon, 58 A.D.2d 1041, 397 N.Y.S.2d 294, which held that extending the exception to cover a defendant who happened to shoot his victim at his place of business would be a perversion of justice). The Appellate Division, Second Department has more strictly construed the exception than most other courts. In People v. Francis, 45 A.D.2d 431, 358 N.Y.S.2d 148, a sharply divided court concluded that the "place of business exception" did not extend to a postal employee who was arrested for weapons possession on the premises of a United States Post Office. The majority placed considerable emphasis on People v. Levine, 42 A.D.2d 769, 346 N.Y.S.2d 756, a memorandum decision of the Court. (See People v. Francis, 45 A.D.2d 431 at 433, 358 N.Y.S.2d 148 at 151 for a discussion of Levine.) Levine involved a taxicab driver who displayed a loaded revolver during the course of an argument with another motorist, who was an off-duty patrolman. The Appellate Division affirmed the judgment of conviction based upon the defendant's plea of guilty, rejecting the defendant's contention that the trial court erred as a matter of law when it held that a taxicab was not a place of business.

The Court then went on to compare the holding in Levine with the facts presented in the Francis case.

"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." (People v. Francis, supra at 434, 358 N.Y.S.2d at 152).

The dissenters argued that the strict construction adopted by the majority was too rigid and narrow. They distinguished Levine, in part, by noting that the taxi driver in Levine did not display his weapon in connection with the operation of his taxicab as a cab for hire, but rather in an altercation with another motorist. (People v. Francis, supra. See also N.Y.Crim.Prac. by Zett, at p. 93-36).

The defendant in Francis appealed to the Court of Appeals. That Court, using the following language, specifically declined to shed any light on the "place of business exception."

"The law under which he was charged makes possession of a gun and ammunition a Class D Felony unless the possession occurs in 'such person's home or place of business,' in which case the offense is characterized as a misdemeanor. (Penal Law § 265.02, subd. 2, renumbered § 265.02, subd. 4, by L.1974, ch. 1041). The term 'place of business' had not at that time been definitively interpreted, but some lower court cases had held that it applies to such small business proprietors as taxi drivers who are responsible for the safety of their vehicles. (People v. Santana, 77 Misc.2d 414, 354 N.Y.S.2d 387; People v. Anderson, 74 Misc.2d 415, 344 N.Y.S.2d 15; People v. Santiago, 74 Misc.2d 10, 343 N.Y.S.2d 805).

Nevertheless, defendant urged, for the first time on appeal, that the Judge had an absolute duty to warn him that he might qualify for the misdemeanor category before accepting his plea to the Class E felony of attempted possession, which resulted in a six-month sentence. We do not agree.

In delineating our reasons, however, it is first necessary to state that we do not today decide the question of whether the place of business exception should apply to one in the defendant's position. The Appellate Division, in affirming defendant's conviction, held that it did not. The two Judges who dissented did so on that issue. The majority, in its discretion, also reduced the defendant's sentence to time already served. We affirm the order, but not for the reasons stated in either opinion."

(People v. Francis, 38 N.Y.2d 150, at p. 152, 379 N.Y.S.2d 21, at p. 23, 341 N.E.2d 540, at p. 541.)

A careful reading of the reported cases leads one to the conclusion that this area of the law is at best, unsettled. It is clear that the exception does not apply when the person possessing the weapon does so to accomplish some illicit purpose. (People v. Fearon, supra). Further, where the weapon is used for some purpose outside of the scope of his business function, the exception does not apply. (People v. Levine, supra; People v. Francis, 45 A.D.2d 431, 358 N.Y.S.2d 148.) Other factors which may have bearing on the applicability of the exception to a particular case include the incidents of ownership or control over the area or object to be protected, whether or not the weapons could reasonably be considered necessary or authorized for protection of persons or property, and finally, whether application of the exception would defeat the overriding...