People v. Nivar

• Decision Date: 13 January 2011
• Citation: 915 N.Y.S.2d 801,30 Misc.3d 952
• Parties: The PEOPLE of the State of New York v. Ronald NIVAR, Defendant.
• Court: New York Supreme Court

915 N.Y.S.2d 801

30 Misc.3d 952

The PEOPLE of the State of New York

v.Ronald NIVAR, Defendant.

Supreme Court, Bronx County, New York.

Jan. 13, 2011.

Michael J. Haidas, Esq., Steven B. Wasserman, Esq., The Legal Aid Society, for defendant Ronald Nivar.

Patrick R. Seidel, Esq., Assistant District Attorney, Bronx County, Mark W. Muschenheim, Esq., Assistant Corporation Counsel, for Amicus Curiae The City of New York.

MIRIAM R. BEST, J.

Introduction

Defendant is charged with Assault in the Third Degree (PL § 120.00[1] ), Harassment in the Second Degree (PL § 240.26[1] ), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[1] ) and Unlawful Possession of an Air Pistol (AC § 10-131[b] ). The charges arise out of an incident that allegedly occurred at approximately 2:00 pm on June 26, 2010, inside an apartment on Walton Avenue in the Bronx. At that time, the People allege, defendant grabbed Jennifer Perez by her arm, pushed her against a wall and choked her, causing substantial pain to her arm and neck and a bruise to her arm. Thereafter, on July 29, 2010, at approximately 11:00 am, Police Officer Erik Carl allegedly observed that defendant possessed one black handgun and one air pistol inside of his bedroom closet. Defendant allegedly stated, in sum and substance: COPS FOUND IN CLOSET WHICH I HAD FOR PROTECTION NEVER SHOT IT. JUST FOR PROTECTION, BOUGHT IT FROM AN OLD HIGH SCHOOL FRIEND ON JANUARY 2010. I PAID ABOUT $800 ITS ( sic ) BLACK AND THERE ARE SOME BULLETS MAYBE 3 OR 4 IN CLOSET. THEY WERE NEVER LOADED I NEVER FIRED IT AS WELL.

Defendant now moves to dismiss the weapons charge and the Administrative Code charge as facially unconstitutionaland unconstitutional as applied. ¹ He also moves for suppression and preclusion of evidence. For the reasons that follow, this Court holds that neither PL § 265.01(1) nor AC § 10-131(b) violates the Second Amendment and neither is unconstitutional as applied to defendant.

Summary of the Constitutional Arguments

Relying on District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, --- U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), defendant argues that PL § 265.01(1) is an unconstitutional prohibition of his right to possess a firearm in his home for the purpose of self-defense. While he concedes both that the Supreme Court "certainly left open the right of states to regulate the sale, possession, and use of firearms" (Haidas Br. at 3) and that PL § 400.00 permits a person to obtain a license to possess a firearm (Haidas Br. at 7, 8), he argues that the statute fails the strict scrutiny test that he argues must be applied to it. This is so, he claims, because the restrictions on gun ownership are overbroad, the state's licensing scheme is arbitrary and capricious and it prevents indigent citizens from legally possessing firearms. He also argues that New York City's ban on the possession of air pistols and air rifles is unconstitutional, because an air pistol is a firearm that "can be effective" for self-defense in the home and because air pistols could be characterized as "arms" as that term is defined by Second Amendment jurisprudence (Haidas Br. at 14-15). In his reply brief, defendant also claims that air pistols were in common use at the time of the Framers and should be permitted by New York City specifically because some people might choose a less-lethal handgun for self-defense in the home. Finally, defendant claims that these statutes are unconstitutional as applied to him.

The People respond that defendant has not overcome his heavy burden of proving the laws' invalidity beyond a reasonable doubt. They argue that PL §§ 265.01 and 400.00 have already been found constitutional against Second Amendment challenges, and analyze why these decisions are correct and defendant's arguments are incorrect. They also argue that air pistols are not firearms; therefore, AC § 10-131(b) is valid when analyzed under either the rational basis or intermediate scrutiny test.

Finally, the Court has permitted the City of New York to file a brief as amicus curiae. The City defends its policies and procedures for obtaining a firearms license. It also argues that its ban on the possession of air pistols is constitutional, both because air pistols are not firearms and because, even if they were, the City's restrictions on them do no implicate the core Second Amendment right identified by the Supreme Court.

Analysis

In Heller, the Supreme Court struck down District of Columbia statutes prohibiting the possession of handguns in the home and requiring lawfully-owned firearms to be kept inoperable. (554 U.S. at 635, 128 S.Ct. 2783.) Rejecting the argument that the right "to keep and bear arms" was connected with militia service (554 U.S. at 595-619, 128 S.Ct. 2783), the Court concluded that the Second Amendment codified an individual right to keep and bear arms for the core purpose ofallowing law-abiding citizens to defend themselves, their families and their homes (554 U.S. at 595, 628-30, 128 S.Ct. 2783; see also McDonald, 130 S.Ct. at 3044 ["our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."] ).

Two years later, in McDonald, the Court held that the Second Amendment right to keep and bear arms for self-defense is fully applicable to the states through the Fourteenth Amendment. 130 S.Ct. at 3050.²

Significantly, the Supreme Court unequivocally stated in Heller that "the Second Amendment is not unlimited" (554 U.S. at 626, 128 S.Ct. 2783), that "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 and qualifications on the commercial sale of arms," id. at 626-27, 128 S.Ct. 2783 and that the Court was identifying "these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive" ( id. at 627, n. 26, 128 S.Ct. 2783).³ In "repeating those assurances" in McDonald, the plurality of the Court stated that,"incorporation does not imperil every law regulating firearms" (130 S.Ct. at 3047). Indeed, federal district courts have rejected challenges to the firearms licensing schemes that were adopted in the District of Columbia and Chicago following Heller and McDonald. ( Heller v. District of Columbia [" Heller II "], 698 F.Supp.2d 179 [D.D.C. 2010]; Ezell v. City of Chicago, ---F.Supp.2d ----, 2010 WL 3998104 [N.D.Ill. 2010] ).⁴

Penal Law §§ 265.01 and 400.00 ⁵

Penal Law § 265.01(1) states, in relevant part, that a "person is guilty of criminal possession of a weapon in the fourth degreewhen: (1)[h]e possesses any firearm." Exemptions to this rule are listed in PL § 265.20, which provides, in relevant part in subsection (a) (3), that Section 265.01 shall not apply to "[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter." Penal Law § 400.00 (2) specifically provides for the issuance of a license "for a pistol or revolver, other than an assault weapon or a disguised gun," for a householder to "have and possess in his dwelling." The general statutory requirements for a license are that an applicant be 21 years of age or older, of good moral character, who has not been convicted of a crime or serious offense (as that term is defined in PL § 265.00[17] ) or had a license revoked, who is not disqualified by reason of mental illness or the existence of an order of protection, and "concerning whom no good cause exists for the denial of the license." (Donnino, Practice Commentary, McKinney's Cons. Law of N.Y., Penal Law § 400.00).⁶ Thus, any person to whom a license has been issued may lawfully possess a firearm in his or her home. Indeed, the City affirms that, "[i]n 2009, there were 1,141 new applications for premise residence licenses, and 826 of these applications were approved" (City's Amicus Br. at 3). ( See also People v. Foster, --- A.D.3d ----, 915 N.Y.S.2d 449 (Crim. Ct., Kings County 2010) ["The Peoplehave affirmed that in 2008, the Police Department received approximately 900 premise residence license applications and issued approximately 773 such licenses; in 2009, the Police Department received approximately 1,167 premise residence license applications and issued approximately 852 such (licenses); and that in 2010, as of June30th, the Police Department has received approximately 637 premise residence license applications and has issued approximately 351 such licenses."] ).⁷

Accordingly, on their face, PL §§ 265.01(1) and 400.00 are constitutional and do not run afoul of Heller. ( People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209 [3d. Dept.] [affirming defendant's conviction for Criminal Possession of a Weapon in the Second and Third Degrees; "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."], lv. to appeal denied, 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009]; People v. Abdullah, 23 Misc.3d 232, 234, 870 N.Y.S.2d 886 (Crim. Ct., Kings County 2008] ["Because New York does not have a complete ban on the possession of handguns in the home ... Heller is distinguishable and its holding does not invalidate New York's gun possession laws or regulations"]; People v. Ferguson, 21 Misc.3d 1120(A), *4, 2008 WL 4694552 [Crim. Ct. Queens County 2008] ["the requirement that handguns be licensed in the State of New York is not tantamount to a total ban and, therefore is not a severe restriction' as was the case in Heller "]; see also Mallard v. Potenza, 376 Fed.Appx. 132, 134 [2d.Cir.] [affirming partial summary...