| People v Perkins |
| 2009 NY Slip Op 03962 [62 AD3d 1160] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShawnPerkins, Also Known as Charles Shawn Perkins, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered August 17, 2007, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree.
In September 2006, defendant was involved in a verbal confrontation with another person,which escalated to a point when defendant drew a handgun and fired two shots at the victim infront of the victim's home. The victim was uninjured and defendant fled the scene. Defendantwas subsequently indicted for one count each of reckless endangerment in the firstdegree,[FN*]criminal possession of a weapon in the second degree, criminal possession of a weapon in thethird degree, attempted assault in the first degree and attempted murder in the second degree.After a trial, the jury returned a verdict convicting defendant of criminal possession of a weaponin the second degree and criminal possession of a weapon in the third degree and acquitting himof the remaining charges. Defendant was thereafter sentenced to 8½ years in [*2]prison and 3½ years of postrelease supervision on theconviction for criminal possession of a weapon in the second degree and a concurrent sentenceof 6½ years in prison with three years of postrelease supervision on the conviction forcriminal possession of a weapon in the third degree. Defendant now appeals and we affirm.
We reject defendant's contention that the statutes under which he was convicted violate theSecond Amendment of the US Constitution and Civil Rights Law § 4. Defendant's relianceon District of Columbia v Heller (554 US —, 128 S Ct 2783 [2008]) is misplaced.While the United States Supreme Court concluded in that case that the Second Amendmentconfers a constitutionally protected individual right to keep and bear arms as a means ofself-defense within the home, it also held that the right conferred by the SecondAmendment—and, by extension, Civil Rights Law § 4 (see Chwick vMulvey, 2008 NY Slip Op 22486[U], *19 [2008])—is not absolute and may belimited by reasonable governmental restrictions (see District of Columbia v Heller, 554US at —, 128 S Ct at 2816).
Unlike the statute at issue in Heller, Penal Law article 265 does not effect a completeban on handguns and is, therefore, not a "severe restriction" improperly infringing upondefendant's Second Amendment rights. Moreover, in our view, New York's licensingrequirement remains an acceptable means of regulating the possession of firearms (seePeople v Morrill, 101 AD2d 927 [1984]; People v Ferguson, 21 Misc 3d 1120[A],2008 NY Slip Op 52112[U], *4 [Crim Ct, Queens County 2008]) and will not contraveneHeller so long as it is not enforced in an arbitrary and capricious manner (see Districtof Columbia v Heller, 554 US at —, 128 S Ct at 2819).
Here, defendant was not in his home at the time of the crime and did not have a valid pistolpermit. Inasmuch as the relevant sections of the Penal Law are constitutionally sound anddefendant's conduct did not conform to that which is protected by the Second Amendment andCivil Rights Law § 4, defendant's constitutional challenge lacks merit.
Defendant failed to preserve his objection to the jury pool based upon comments made bytwo prospective jurors (both of whom were successfully challenged for cause), as he failed toraise the objection to the jury pool before the jury was empaneled (see People v Cosmo,205 NY 91, 100 [1912]; People v O'Keefe, 281 App Div 409, 415 [1953], affd306 NY 619 [1953]). Nor did defendant either request a curative instruction or object to itsabsence. Were we to consider defendant's arguments, we would find them to be unavailing inany event, as the prospective jurors' comments did not warrant a curative instruction and CountyCourt's general admonishments to the jury pool adequately addressed any potential problems thatdefendant now raises on appeal.
Defendant's challenge to his conviction of criminal possession of a weapon in the thirddegree based upon the absence of an inclusory concurrent count charge to the jury under CPL300.40 (3) (b) is similarly unpreserved as he failed to request such charge or object to its absencebefore the jury retired to deliberate (see People v Dennis, 263 AD2d 618, 618 [1999],lvs denied 94 NY2d 822, 830 [1999]).
Defendant's contentions concerning County Court's bases for sentencing are unpreserved forappellate review and, in all events, are unpersuasive. Moreover, " '[t]he mere fact that a sentenceimposed after trial is greater than that offered in connection with plea negotiations is not proof[positive] that defendant was punished for asserting his right to trial' " (People v [*3]Riback, 57 AD3d 1209, 1218 [2008], quoting People vSimon, 180 AD2d 866, 867 [1992], lvs denied 80 NY2d 838 [1992]). With regard todefendant's claim that the sentences were harsh and excessive, inasmuch as we do not find thatCounty Court abused its discretion or that extraordinary circumstances exist to warrant areduction in the interest of justice, we decline to disturb them (see People v Massey, 45 AD3d1044, 1048 [2007], lv denied 9 NY3d 1036 [2008]).
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The People consented to thedismissal of this count on the first day of trial.