People v. Perez

• Decision Date: 12 October 1971
• Citation: 325 N.Y.S.2d 183,67 Misc.2d 911
• Parties: The PEOPLE of the State of New York v. Raymundo C. PEREZ.
• Court: New York County Court

Page 183

325 N.Y.S.2d 183

67 Misc.2d 911

The PEOPLE of the State of New York v. Raymundo C. PEREZ.

Onondaga County Court.

Oct. 12, 1971.

Leo F. Hayes, Dist. Atty. Onondaga County, Robert J. Rossi, Syracuse, of counsel, for the People.

Irwin Birnbaum, Syracuse, for defendant.

MEMORANDUM

ORMAND N. GALE, Judge.

This is a Motion to Dismiss the Indictment charging Defendant with Violation of § 265.05 POSSESSION OF A DANGEROUS WEAPON, on the ground that § 265.05 when read in conjunction with § 265.20 and § 400.00 is unconstitutional. The Defendant herein contends that his right to travel has been violated, and further that his rights under the privileges and immunities, due process and equal protection clauses of the Federal Constitution have also been violated.

The facts, briefly stated, indicate that the Defendant herein was traveling through the state on his way to visit friends in Massachusetts. The Defendant was stopped by a police officer, and at some point it was discovered that the Defendant had a hand gun in his car, and was subsequently arrested for possessing it.

The Defendant contends that his right to travel has been violated because this state does not provide a non-resident traveler a procedure whereby he can obtain a permit to carry a license while traveling through this state. The right to travel cannot be deemed absolute but the exercise of the right should be uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement. (Passenger Cases, 7 HDW 283,992; Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322, 22 L.Ed.2d 600). In exercise of its general governmental power to advance the welfare and protect the safety of its residents, it does not seem to this Court that a restriction on the possession of a dangerous weapon to a traveler of unknown background and character is an unreasonable burden on his right to travel.

The procedure provided in § 400.00 requires local authorities to thoroughly check the individual applying for a permit. It would be unduly burdensome for a local agency to check every traveler passing through New York State to see if he or she fits the requirement for obtaining a license as set out in § 400.00. Any other abbreviated procedure would not carry out the purpose of the present gun legislation--which is to restrict the possession of a dangerous weapon to those who have been thoroughly investigated and found of good moral character.

As to the second argument made by the Defendant, he contends the privileges and immunities clause of the constitution of the United States, Article 4, Section 2 has been violated in that residents of New York State are provided with a procedure whereby they may obtain a license and non-residents are not. In determining the constitutionality of a statute embodying a discrimination between residents and non-residents the constitutional question presented is whether the factor of residence has a legitimate connection with the regulation so that a classification on that basis is justifiable. The Court in Goodwin v. State Tax Commission, 286 App.Div. 694, at 700, 146 N.Y.S.2d 172, at 179 stated:

'Like many other constitutional provisions, the privileges and immunities clause (Art. IV, § 2) is not an absolute. It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them.' (Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 92 L.Ed. 1460).

It is a matter of common knowledge that the use of a dangerous weapon has become a serious problem, not only in New York State but throughout the country. The substantial danger to the public interest which would be caused by the unrestricted flow of dangerous weapons into and through the state, possessed by countless travelers, warrants the degree of discrimination set out the statute. As counsel for the Defendant points out, the state of the Defendant's residence tells us that his possession is lawful, while the New York State statute states that possession by a New York resident can only be lawful when the owner of the firearm possesses a permit (which can only be issued to a New York State resident). This certainly points up the necessity for uniform federal legislation governing hand guns.

While at first blush the New York State statute seems discriminatory, it must be regarded as a proper exercise of police power if we are to avoid a situation which could well result in chaos. Time after time we find that 'travelers' decide New York is a good place to live in and take up residence with their hand gun legitimately purchased in the state from whence they came. Most of our homicide and assault cases arise out of this type setting, or one where the new resident cannot find gainful employment and sells the gun to one with a criminal background. As stated earlier it would be impossible to thoroughly check first of all who is validly traveling through the state, and secondly make a complete check as to background and character.

'If the statute upon its face appears to be reasonable and just and appropriate, and if it appears that its natural consequences will be in the direction of the betterment of public health and welfare, it is the duty of the court to pronounce it constitutional.' (People v. Salerno, 17 Misc.2d 535, at page 537, 185 N.Y.S.2d 169 at page 172).

As...