People v. Wallace

• Decision Date: 10 February 2017
• Citation: 47 N.Y.S.3d 603,147 A.D.3d 1494
• Parties: The PEOPLE Of The State of New York, Respondent, v. Akeem WALLACE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1494

47 N.Y.S.3d 603

The PEOPLE Of The State of New York, Respondent,

v.Akeem WALLACE, Defendant–Appellant.

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

Feb. 10, 2017.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.

Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Jack J. Niejadlik of Counsel), for Respondent.

PRESENT: CENTRA, J.P., LINDLEY, NeMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree, a class C felony (Penal Law § 265.03[3] ). The evidence established that defendant brought a loaded, operable, unlicensed handgun to work with him as a swing manager at McDonald's and that he accidentally shot himself in the leg while in the lobby area of the restaurant. Defendant argues that he should fall within the exception set forth in the subdivision, which provides that possession constitutes only a misdemeanor if it takes place in a person's "place of business" (id.; see 265.01[1] ).

Although defendant's motion for a trial order of dismissal was not specifically directed at the legal sufficiency of the evidence based upon the "place of business" exception, inasmuch as he unsuccessfully argued that issue before trial, defendant need not "repeat the argument in a trial motion to dismiss in order to preserve the point for appeal" (People v. Finch, 23 N.Y.3d 408, 410, 991 N.Y.S.2d 552, 15 N.E.3d 307 ). Nevertheless, the contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although the "place of business" exception is not statutorily defined, it has been "construed narrowly by the courts in an effort to balance 'the State's strong policy to severely restrict possession of any firearm' ... with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access" (People v. Buckmire, 237 A.D.2d 151, 151, 655 N.Y.S.2d 9, lv. denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226 ; see People v. Francis, 45 A.D.2d 431, 434, 358 N.Y.S.2d 148, affd. on other grounds 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540 ; People v. Fearon, 58 A.D.2d 1041, 1041, 397 N.Y.S.2d 294, cert. denied 434 U.S. 1036, 98 S.Ct. 772, 54 L.Ed.2d 784 ). Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor "would certainly controvert the meaning and intent of the statute" (Fearon, 58 A.D.2d at 1041, 397 N.Y.S.2d 294 ).

All concur except LINDLEY, J., who dissents and votes to modify in accordance with the following memorandum:

Lindley , J. (dissenting).

I respectfully dissent. Defendant was convicted of criminal possession of a weapon in the second degree under Penal Law § 265.03(3), which makes it a class C felony to possess a loaded firearm. The statute provides an exception, however, for possession of a loaded firearm in one's "home or place of business" (id. ). Here, defendant was charged with possessing a loaded firearm at a McDonald's restaurant in Buffalo where he was employed as a manager. I agree with defendant that he possessed the weapon at his "place of business" inasmuch as he undisputedly worked at the restaurant in question and, thus, that the evidence is legally insufficient to establish that he violated section 265.03(3). I would therefore reduce defendant's conviction to criminal possession of a weapon in the fourth degree (§ 265.01[1] ), a class A misdemeanor.

As cited by the People, there are several decades-old Appellate Division decisions that narrowly construe the home or place of business exception to apply only to persons "attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access" (People v. Buckmire, 237 A.D.2d 151, 151, 655 N.Y.S.2d 9, lv....