People v. Tolbert

• Decision Date: 21 September 1998
• Citation: 680 N.Y.S.2d 96,253 A.D.2d 832
• Parties: , 1998 N.Y. Slip Op. 7881 The PEOPLE, etc., Respondent, v. Moses TOLBERT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 96

680 N.Y.S.2d 96

253 A.D.2d 832, 1998 N.Y. Slip Op. 7881

The PEOPLE, etc., Respondent, v. Moses TOLBERT, Appellant.

Supreme Court, Appellate Division, Second Department.

Sept. 21, 1998.

M. Sue Wycoff, New York, N.Y. (Edlyn L. Willer of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Linda Cantoni, and Adam D. Perlmutter of counsel), for respondent.

Before BRACKEN, J.P., ROSENBLATT, RITTER and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (O'Dwyer, J.), rendered April 4, 1996, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was indicted and convicted under Penal Law § 265.02(4), which provides that a person is guilty of criminal possession of a weapon in the third degree when he or she knowingly possesses any loaded firearm, except where the possession takes place in the defendant's home or place of business. We do not agree with the defendant's contention that the evidence adduced at trial was legally or factually insufficient to support the verdict.

In People v. Maniscalco, 198 A.D.2d 378, 603 N.Y.S.2d 890, this court held that a loaded firearm was not possessed by the defendant inside his home, within the meaning of Penal Law § 265.02(4), where the weapon in question had been recovered from the storage console of the defendant's car, which, at the time, was parked in the unfenced driveway of the defendant's residence. The defendant's effort to distinguish People v. Maniscalco (supra) on the basis that his driveway was fenced-in, rather than unfenced, is unpersuasive. The scope of the home exception provided for in Penal Law § 265.02(4) has "been construed narrowly by the courts" (People v. Buckmire, 237 A.D.2d 151, 655 N.Y.S.2d 9; see also, People v. Powell, 54 N.Y.2d 524, 446 N.Y.S.2d 232, 430 N.E.2d 1285 [common hallway outside group residence not within the home exception]; People v. Crews, 236 A.D.2d 419, 653 N.Y.S.2d 370 [home exception inapplicable where defendant secreted weapon in his house after having possessed it in girlfriend's car] ). Here, the defendant's possession of a loaded firearm occurred out-of-doors, and not in any sense inside his home.