People v. Powell

• Decision Date: 23 December 1981
• Citation: 430 N.E.2d 1285,54 N.Y.2d 524,446 N.Y.S.2d 232
• Parties: , 430 N.E.2d 1285 The PEOPLE of the State of New York, Respondent, v. James POWELL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 232

446 N.Y.S.2d 232

54 N.Y.2d 524, 430 N.E.2d 1285

The PEOPLE of the State of New York, Respondent, v. James POWELL, Appellant.

Court of Appeals of New York.

Dec. 23, 1981.

Barry D. Leiwant, William E. Hellerstein and Thomas H. Busch, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Michael J. Prior and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

The Trial Judge correctly instructed the jury in a prosecution under subdivision (4) of section 265.02 of the Penal Law for possession of a loaded firearm that a person's home, within the meaning of the exclusion from that section, may "extend to facilities shared by several persons not related to each other" but does not encompass a place "to which the public or a substantial group of persons has access". Reference in the charge, as an aid to the jury, to the definition of "public place" contained in a separate article of the Penal Law, while better left unsaid, was not under the circumstances of this case error. The order of the Appellate Division, 80 A.D.2d 787, 437 N.Y.S.2d 7, affirming defendant's conviction under section 265.02 rather than section 265.01 should, therefore, be affirmed.

In apparent deference to the concept that possession of a loaded firearm to protect the persons or property in one's home or place of business is less reprehensible than possession for other purposes (see People v. Francis, 45 A.D.2d 431, 434, 435, n.1, 358 N.Y.S.2d 148, affd. without discussing the point 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540; People v. Bargeman, 92 Misc.2d 173, 176, 399 N.Y.S.2d 393), the Legislature has classified such possession as a misdemeanor punishable under section 265.01 of the Penal Law and possession outside the home or place of business as a class D felony (Penal Law, § 265.02). ¹ Though article 265 of the Penal Law contains no definition of "home," article 240 governing offenses against public order, for the purposes of that article, defines "public place" (§ 240.00, subd. 1) to include "hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence." Defendant contends that by including in the charge defining "home" the section 240.00 definition of "public place," the Trial Judge took from the jury the question whether he was in his "home" and was, therefore, guilty only of the misdemeanor rather than the felony.

Defendant was arrested as he stepped out of the elevator into the lobby of the Men's Shelter at 8 East Third Street in Manhattan. The shelter is a six-story building run by the city's Human Resources Administration to assist persons receiving public aid. Meals are provided in a dining area located in the basement. On the first floor are the lobby and reception area, a bathroom and the so-called "big room," a large auditorium separate from the lobby where clients of the shelter watch television during the day and where those unable to stay in a hotel may sleep after midnight. The other floors of the shelter contain offices, a library, a recreation area, a mailroom and a unit for bedridden clients.

Members of the Permanent Population Unit of the shelter receive lodging service, a meal ticket, clothing vouchers and other counseling and assistance. Lodging service for most PPU members consists of a ticket for one month's lodging at one of six hotels on the Bowery, but those unable to get hotel lodging may sleep in the big room. Many members sleep in parks or in building hallways.

Defendant had been a member of the shelter's Permanent Population Unit for 19 months before he was arrested. He ate most of his meals at the shelter, spent about four hours a day there using the recreational facilities or obtaining services, received his mail there, and voted from that address. He slept at the hotel to which he was ticketed, or in the big room or in parks or hallways when he did not obtain a hotel room, but always returned to the shelter for breakfast. To get to the dining room in the basement or to the recreational facilities or offices on the upper floors one must use the elevator or stairway, both of which open into the lobby. To get to the big room from the elevator or stairway one must walk through the lobby. On an average day 900 to 1,200 shelter clients pass through the lobby as well as a number of other persons who are not clients of the shelter.

At trial defendant admitted possession of a loaded revolver but contended that the shelter was his home and that, therefore, he could only be convicted of the misdemeanor (possession in the fourth degree) and not the felony (possession in the third degree). The Trial Judge submitted to the jury the questions of possession, whether the thing possessed was a firearm, whether it was loaded and whether the shelter was defendant's home, charging on the last as set forth in the margin. ² The jury found defendant guilty of possession of a loaded firearm not in his home. The Appellate Division affirmed, one Justice dissenting, holding that the portion of the shelter in which defendant was arrested could not constitute his home because he had no expectation of privacy in it. The appeal is before us by permission of the dissenter at the Appellate Division.

The absence of a statutory definition of the word "home" as used in subdivision (4) of section 265.02 of the Penal Law like the lack of a definition of the phrase "place of business" as used in that subdivision, ³ has caused Trial Judges to seek analogy in other provisions of the Penal Law or Criminal Procedure Law, as well as in the Election Law and in the case law governing both inheritance and workers' compensation (People v. Bargeman, 92 Misc.2d 173, 399 N.Y.S.2d 393, supra; People v. Taylor, 92 Misc.2d 29, 399 N.Y.S.2d 575; People v. Douglas, 82 Misc.2d 971, 372 N.Y.S.2d 459; People v. Lemelle, 81 Misc.2d 674, 366 N.Y.S.2d 837). The spirit and intent of the various other statutes relied upon, as well as their language, ⁴ differ materially, however, from that of the gun control law.

The result has been something of a ragout. Thus, People v. Lemelle (supra) held that a loaded pistol in a garbage can at the side of defendant's house was not in defendant's home, a result which may appear correct if one emphasizes the word "in" in the statutory phrase "possession * * * takes place in such person's home" (italics and bracketed word supplied), but People v. Taylor, supra, 92 Misc.2d at p. 30, 399 N.Y.S.2d 575, held that an intoxicated person lying "with half of his body on the stoop and half in the inner hallway of a two-family house" was in his home, because the hallway and porch were not public places and were part of the curtilage, and in People v. Merced (N.Y.L.J., May 21, 1976, p. 11, col. 4) the Trial Judge in a Bench trial, refusing to exclude from the home a backyard, driveway or porch, held that possession of a loaded pistol within the fenced-in driveway of defendant's home was but a misdemeanor. ⁵

In People v. Douglas, 82 Misc.2d 971, 372 N.Y.S.2d 459, supra, a Bench trial, the Trial Judge held the abode of a lady with whom defendant had "a strong social connection," where he ate many of his meals and often stayed overnight, was defendant's home within the meaning of the gun control law, though defendant had another abode where he stayed at times, and in People v. Bargeman, 92 Misc.2d 173, 399 N.Y.S.2d 393, supra, the common hallway linking sleeping rooms of unrelated persons to the bathroom and other common facilities in the wing of the hotel in which they lived together, the hallway being separated by a locked door from the vestibule, elevator and stairwell and from the entrance to another wing of the same residency hotel, was held part of defendant's home as a matter of law. Though based on widely different reasoning, both seem to have interpreted the subdivision realistically in light of the legislative intent.

The common though unarticulated thread of all of the decisions above referred to is as the Appellate Division suggests, whether the possessor of the weapon was entitled to "privacy, as one would have in his home" in the area where he was apprehended with the weapon. The very antithesis of privacy is unlimited public access, no matter how closely related the possessor, as a subjective matter, may feel to the particular area as part of what he calls "home," or the extent to which he uses the area as one would a part of his home. To possess a weapon for the purpose of protecting one's person or property within the common area of the residence of a limited group such as was involved in Bargeman (supra) is within the legislative intent because in such an area the limited group is entitled to privacy and the public does not have access. A common hallway outside the group residence, however, is not within that intent because there strangers to the group are allowed access and there is there no right to privacy (cf. People v. Peters, 18 N.Y.2d 238, 244, 273 N.Y.S.2d 217, 219 N.E.2d 595, affd. 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917; see, also, Ann., 57 A.L.R.3d 938) and more possibility of harm to others from the carrying of a loaded weapon.

Tested against...