People v. Witherspoon

• Decision Date: 18 August 1983
• Citation: 466 N.Y.S.2d 611,120 Misc.2d 648
• Parties: PEOPLE of the State of New York v. William WITHERSPOON.
• Court: New York Supreme Court

Page 611

466 N.Y.S.2d 611

120 Misc.2d 648

PEOPLE of the State of New York v. William WITHERSPOON.

Supreme Court, Criminal Term,

Kings County, Part 36.

Aug. 18, 1983.

Harold I. Venokur, Brooklyn, for defendant.

Elizabeth Holtzman, Dist. Atty., Kings County by Dolan L. Garrett, Asst. Dist. Atty., for the People.

MEMORANDUM

DONALD GRAJALES, Justice.

This case presents the issue under the new guidelines set by the Court of Appeals whether criminal possession of a weapon in the third degree is a lesser included offense of criminal possession of a weapon in the second degree. The determination of this issue centers around whether the "home or place of business" exception contained in the section defining criminal possession of a weapon in the third degree is an element of that crime.

Defendant was indicted, inter alia, for the crimes of criminal possession of a weapon in the second degree (P.L. § 265.03) and reckless endangerment in the first degree (P.L. § 120.25). ¹

In the course of defendant's jury trial, defendant requested that the court charge the jury as to the crime of criminal possession of a weapon in the third degree (P.L. § 265.02[4] ) ² as a lesser included offense of criminal possession of a weapon in the second degree (P.L. § 265.03). ³

The issue whether criminal possession of a weapon in the third degree is a lesser included crime of criminal possession of a weapon in the second degree is determined by applying the test in People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376 and People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146. In People v. Glover, supra, 57 N.Y.2d at p. 64, 453 N.Y.S.2d 660, 439 N.E.2d 376, the court stated that the first prong of a two-prong test is whether it is "theoretically impossible to commit the greater crime without at the same time committing the lesser * * * and is determined by a comparative examination of the statutes defining the two crimes, in the abstract * * * " (emphasis supplied); (see People v. Green, supra). "If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met * * * " (emphasis supplied) (People v. Green, supra, 56 N.Y.2d at 431, 452 N.Y.S.2d 389, 437 N.E.2d 1146).

The fact pattern in People v. Fearon, 58 A.D.2d 1041, 397 N.Y.S.2d 294, lv. den. 42 N.Y.2d 1002, 398 N.Y.S.2d 1044, 368 N.E.2d 50 cert. den. sub nom. Fearon v. New York, 434 U.S. 1036, 98 S.Ct. 772, 54 L.Ed.2d 784 provides a perfect example for making this theoretical evaluation. In Fearon, the defendant shot and killed decedent in defendant's place of employment. Although the defendant is guilty of felonious possession of a weapon (he possessed a loaded firearm with intent to use the same unlawfully against the decedent), he did not, at the same time, commit the crime of possession in his place of business. Therefore, under those facts, it is possible to commit the higher crime without "concomitantly committing, by the same conduct" the lesser offense (see CPL 1.20, subd. 37; cf. People v. Restrepo, 93 A.D.2d 825, 460 N.Y.S.2d 620; People v. Brown, 91 A.D.2d 638, 456 N.Y.S.2d 819).

However, the determining factor is not whether this court could conceive of a theoretical situation, but whether by a comparison of the statutes "defining crimes" or their elements the lower crime is a lesser included offense of the higher crime. Thus, the question is whether the exception is an element of criminal possession of a weapon in the third degree.

The "home or place of business" exception appeared in subdivision 2 of section 1897 of the former Penal Law, effective July 1, 1964 (L.1964, ch. 521), on the recommendation of the New York State Joint Legislative Committee on Firearms and Ammunition. The 1964 report of that Committee (N.Y. Legislative Document 1964, No. 12) offers no insight into the legislative intent for including the exception in the statute (People v. Francis, 45 A.D.2d 431, 358 N.Y.S.2d 148, affd. 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540 Shapiro, J. dissent 45 A.D.2d at 435, n. 1, 358 N.Y.S.2d 148; see also People v. Rondon, 109 Misc.2d 394, 395, 439 N.Y.S.2d 803). This provision merely reduces the charge of criminal possession of a weapon from a felony to a misdemeanor. Apparently it was intended to mitigate the penalty for persons whose illegal possession of a weapon is inside their home or place of business and is solely for self-protection and protection of property (see People v. Fearon, 58 A.D.2d 1041, 397 N.Y.S.2d 294, supra).

The case law interpretation of the so-called "exception" contributes to the confusion in this area.

In United States ex rel. Presenzano v. Deegan, 294 F.Supp. 1347, petitioner argued that the "exception" in former Penal Law section 1897, subdivision 2, is a matter to be excluded by the People in its direct case and not something to be raised by the defense. The court rejected defendant's argument and called the "exception" a "defense" and placed the burden on the defendant to go forward with "some evidence, however slight," to raise the issue of possession in his home or place of business (at p. 1350). The court did imply that once raised, the People must prove that possession was not in defendant's home or place of business.

In People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312, a majority of the Court of Appeals, in deciding whether an indictment must allege facts tolling the statute of limitations, stated that:

"[e]ssential allegations are generally determined by the statute defining the crime. If the defining statute contains an exception, the indictment must allege that the crime is not within the exception" (emphasis supplied; at p. 187, 331 N.Y.S.2d 416, 282 N.E.2d 312).

This rule of construction when applied to the "home or place of business" exception requires that it be delineated as an "essential allegation" of the crime.

In People v. Iannone, 45 N.Y.2d 589, at 600-601, 412 N.Y.S.2d 110, 384 N.E.2d 656, the Court of Appeals decided that an indictment which fails to allege every material element of the crime charged is "jurisdictionally defective."

In People v. Meyer, 46 A.D.2d 904, 362 N.Y.S.2d 190, the Appellate Division, Second Department, failed to dismiss an indictment which did not assert whether the crime charged (criminal possession of a weapon) was within the statutory exception. The appellate court held that while the indictment might not support a conviction for the felony charge of possession of a weapon because of the failure to allege the "exception" in the indictment, the indictment was sufficient to support a conviction for the crime of criminal possession of a weapon, as a misdemeanor, and reduced the defendant's conviction accordingly.

In People v. Ali, 44 A.D.2d 232, 354 N.Y.S.2d 426 affd. 36 N.Y.2d 880, 372 N.Y.S.2d 212, 334 N.E.2d 11, the issue which was presented involved a situation in which the indictment contained the statutory exception by inclusion of the clause, "said possession not being in the defendant's home or place of business." The trial court refused to charge the jury with respect to the weapons count as to the place of defendant's possession of the gun, i.e., whether it was in defendant's home, place of business or elsewhere. Ali was convicted of felonious possession of a weapon. The Appellate Division (supra, 44 A.D.2d at 233, 354 N.Y.S.2d 426) stated "A trial court, even after a request by counsel, is not required to instruct the jury on the elements of a crime which has not been proven under any view of the facts. This is true whether the request involves a lesser-included crime (cf. CPL 300.50) or whether it involves a statutory exception such as in the case at bar (United States ex rel Presenzano v. Deegan, 294 F Supp 1347; cf.People v. Anthony, 21 AD2d 666 )." (Emphasis supplied.)

The Court of Appeals in Ali, 36 N.Y.2d 880, at 882, 372 N.Y.S.2d 212, 334 N.E.2d 11, found that it was not error for the trial court to have denied the proffered charge as long as the indictment charged only possession of a weapon as a felony. The Court of Appeals found that the exception to the statute (P.L. 265.02[4] ) is a material element, and held that criminal possession of a weapon in the fourth degree is not a lesser included offense of criminal possession of a weapon in the third degree. It is therefore apparent from the decisions in People v. Ali (supra), at both the Appellate Division and Court of Appeals levels, that those courts found the "home or place of business" exception to be a material element of the crime.

In People v. McWilliams, 96 Misc.2d 648, 409 N.Y.S.2d 610, the court seems to have determined that the "home or place of business" clause is an exception for all purposes, except for determining the validity of the indictment, where it becomes a material element of the crime, and therefore must be alleged. The court's reasoning falls short of clarifying the "home or place of business" provision and, in fact, rebuts its own arguments by its citations. At page 654, 409 N.Y.S.2d 610 of the McWilliams decision, the court indicates that the "exception" is sometimes...