People v. Tatis

• Decision Date: 28 February 2019
• Docket Number: Ind. 2969/13,8367
• Citation: 170 A.D.3d 45,95 N.Y.S.3d 160
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexis TATIS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 45

95 N.Y.S.3d 160

The PEOPLE of the State of New York, Respondent,

v.Alexis TATIS, Defendant–Appellant.

8367

Ind. 2969/13

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 28, 2019

Robert S. Dean, Center for Appellate Litigation, New York (Scott H. Henney of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Robert C. McIver and Rafael Curbelo of counsel), for respondent.

John W. Sweeny, Jr., J.P., Peter Tom, Troy K. Webber, Marcy L. Kahn, Cynthia S. Kern, JJ.

KERN, J.

One of the issues that must be determined on this appeal is whether certain exclusionary language contained in New York City Administrative Code § 10–131(i)(3) constitutes an exception or a proviso. There are no appellate decisions which have addressed this issue. Section 10–131(i)(3) provides that "[i]t shall be unlawful for any person not authorized to possess a pistol or revolver within the city of New York to possess pistol or revolver ammunition, provided that a dealer in rifles and shotguns may possess such ammunition" (emphasis added). We find that the relevant language in section 10–131(i)(3), which makes it a crime to possess pistol or revolver ammunition unless authorized to possess a pistol or revolver, constitutes an exception and not a proviso. Consequently, it was the People's burden to prove that the defendant was not authorized to possess a pistol or revolver within the City of New York. As the People failed to do so, defendant's conviction under section 10–131(i)(3) must be vacated and that count dismissed.

In order to determine whether a statute defining a crime contains "an exception that must be affirmatively pleaded as an element in the accusatory instrument" or "a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial," one must look to the language of the statute itself ( People v. Santana , 7 N.Y.3d 234, 236, 818 N.Y.S.2d 842, 851 N.E.2d 1193 [2006] ). Indeed, "[i]f the defining statute contains an exception, the indictment must allege that the crime is not within the exception. But when the exception is found outside the statute," it is termed a proviso and "generally is a matter for the defendant to raise in defense" ( People v. Kohut , 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 [1972] ). "Legislative intent to create an exception [whose existence must be negated by the prosecution] has generally been found when the language of exclusion is contained entirely within" the statute itself ( Santana , 7 N.Y.3d at 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ). In contrast, where the language of the exclusion depends on a source outside the statute, courts will infer that the language functions as a proviso (see id. ).

"The main goal of the interpretive rules governing exceptions and provisos is to discover the intention of the enacting body," People v. Davis , 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009], and the "distinction between a proviso and an exception will be wholly disregarded, if necessary to give effect to the manifest intention of" such enacting body (McKinney's Cons Laws of NY, Book 1, Statutes § 211, Comment at 369). Davis involved a Parks Department rule that prohibited people from being in city parks after their posted closing times ( 13 N.Y.3d at 21, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ). Although the rule contained qualifying language stating that a person may disregard a park sign "upon order by a Police Officer or designated Department employee," the information that charged the defendant with a violation of the rule did not state whether that exclusionary language applied to the defendant ( id. ). The Court of Appeals held that the relevant phrase was a proviso, even though the exclusion was contained within the rule itself, because "as a matter of common sense and reasonable pleading," the Parks Department could not have intended to impose a pleading and proof requirement that involved "information ... uniquely within a defendant's knowledge" and would impose an unreasonably onerous burden on the People to negate the existence of permission from "innumerable ... officers and employees in the area during the date in question" ( id. at 31–32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ).

We find that the relevant language in section 10–131(i)(3) constitutes an exception and not a proviso. Section 10–131(i)(3) clearly sets forth an exception which would allow possession of ammunition for persons who are "authorized to possess a pistol or a revolver within the city of New York," thereby constituting an essential element of the offense that the People were required to negate. The language of the exception is contained entirely within section 10–131(i)(3) and is not dependent on a source outside the statute. There is also no evidence that the legislature intended to create a proviso rather than an exception.

The exception articulated in Davis , that an exclusion contained entirely within a statute can sometimes be construed as a proviso, is inapplicable here. In this case, whether the defendant was authorized to possess a pistol or revolver is information that is in the government's control and is not "uniquely within [the] defendant's knowledge" ( Davis , 13 N.Y.3d at 31–32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ). Thus, placing the burden on the People to prove that defendant was unauthorized to possess a pistol or revolver is not at odds with reasonableness or common sense and would not be "unreasonably onerous" ( id. ).

Finally, as the People acknowledge, the sole court to address the issue of whether the relevant language contained in section 10–131(i)(3) constitutes an exception or a proviso found that it constitutes an exception (see People v. Lammy , 29 Misc.3d 1222[A], 2010 WL 4608688 [Sup. Ct., N.Y. County 2010] ).

The People's assertion that the relevant language in section 10–131(i)(3) should be construed as a proviso because the legislature intended it to be construed as such is without merit. Specifically, the People assert that because the legislative intent underlying section 10–131(i)(3) reflects a belief that the ammunition it targets presents a "grave threat" to law enforcement and the public, the legislature intended for it to be the defendant's burden to prove that the possession of such dangerous ammunition was authorized and not the People's burden to disprove. However, the People have failed to explain why general safety concerns underlying section 10–131(i)(3) support a construction of the statute contrary to its wording and ordinary meaning.

The People's assertion that the relevant language in section 10–131(i)(3) should be construed as a proviso in order to maintain consistency with state law is also without merit. The People point to Penal Law section 265.20, which is a catalogue of exemptions to various Penal Law weapon provisions, including one for "[p]ossession of a pistol or revolver by a person to whom a license therefor has been issued ..." ( Penal Law § 265.20[a][3] ). These exemptions must be raised by a defendant in the first instance before the prosecution is required to disprove them beyond a reasonable doubt (see People v. Psilakis , 148 A.D.2d 475, 476, 538 N.Y.S.2d 623 [2d Dept. 1989] ), lv denied 73 N.Y.2d 981, 540 N.Y.S.2d 1015, 538 N.E.2d 367 [1989] ["it is incumbent upon the defendant to go forward in the first instance, with evidence that he possesses an appropriate firearms license"]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 265.20 [the exemptions "are in the nature of a defense," which the defendant is required to raise before the prosecution is required to disprove] ). However, the People's reliance on Penal Law section 265.20 and such exemptions is unavailing as that section is distinguishable from the statute at issue in this case. Because the exemptions in Penal Law section 265.20 are found outside the particular Penal Law provisions to which they apply, interpreting them to require an initial showing by a defendant is consistent with the interpretive principles traditionally used to differentiate between exceptions and provisos (see Kohut , 30 N.Y.2d at 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 ; Santana , 7 N.Y.3d at 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ). The same is not true in this...