| People v Hughes |
| 2011 NY Slip Op 03262 [83 AD3d 960] |
| April 19, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Franklin Hughes, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Richard R. Martell ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.),rendered July 8, 2009, convicting him of criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree, after a nonjury trial, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant asserts that his convictions of criminal possession of a weapon in the seconddegree (see Penal Law § 265.03 [3]), and criminal possession of a weapon in thethird degree (see Penal Law § 265.02 [1]), must be reversed because the statutesunder which he was convicted violate the United States Constitution as well as Civil Rights Law§ 4. Contrary to the People's contention, under the particular circumstances of this case, thedefendant properly preserved his constitutional challenges for appellate review by raising them inhis postverdict motion pursuant to CPL 330.30 (cf. People v Gibian, 76 AD3d 583, 587 [2010]; see generallyPeople v Padro, 75 NY2d 820 [1990]).
The defendant correctly observes that, in District of Columbia v Heller (554 US 570[2008]), the Supreme Court of the United States (hereinafter the Supreme Court) held that theSecond Amendment to the United States Constitution confers a constitutionally protectedindividual right to keep and bear arms for self-defense in the home. Moreover, the SupremeCourt has held that this Second Amendment right is "fully applicable to the States"(McDonald v City of Chicago, 561 US —, —, 130 S Ct 3020, 3026 [2010]).However, the rights conferred under the Second Amendment are not unlimited (see Districtof Columbia v Heller, 554 US at 626). For example, the Supreme Court stated inHeller that nothing in that opinion "should be taken to cast doubt on longstandingprohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding thecarrying of firearms in sensitive places such as schools and government buildings, or lawsimposing conditions and qualifications on the commercial sale of arms" (id. at 626-627).
Here, the challenged statutes are Penal Law § 265.02 (1) and § 265.03 (3). PenalLaw § 265.02 (1) provides that "[a] person is guilty of criminal possession of a weapon inthe third degree when . . . [s]uch person commits the crime of criminal possessionof a weapon in the fourth degree as defined in subdivision one, two, three or five of section265.01, and has been previously convicted of any crime." Penal Law § 265.03 (3) providesthat "[a] person is guilty of criminal possession of a weapon in the second degree when. . . such person possesses any loaded firearm. Such possession shall not, except asprovided in subdivision one or seven of section 265.02 [*2]of thisarticle, constitute a violation of this subdivision if such possession takes place in such person'shome or place of business." Thus, these sections, as relevant here, criminalize the possession of afirearm (see Penal Law § 265.02 [1]) or a loaded firearm (see Penal Law§ 265.03 [3]), even in the home, where the defendant has previously been convicted of"any crime." Critically, this is not an absolute ban on the possession of firearms. We agree withthe Appellate Division, Third Department, that, "[u]nlike the statute at issue in Heller,Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a 'severerestriction' improperly infringing upon defendant's Second Amendment rights" (People v Perkins, 62 AD3d 1160,1161 [2009]). Instead, as relevant to the discussion here, the statutes represent a policydetermination by the Legislature that "an illegal weapon is more dangerous in the hands of aconvicted criminal than in the possession of a novice to the criminal justice system" (People v Montilla, 10 NY3d 663,666 [2008]). We also note that the Penal Law defines a "crime" as "a misdemeanor or a felony"(Penal Law § 10.00 [6]) and, thus, lesser matters such as violations and traffic infractionsdo not fall within the ambit of the challenged statutes. Contrary to the defendant's contention, weconclude that this statutory scheme is not unconstitutionally overbroad merely because it restrictsthe Second Amendment and Civil Rights Law § 4 rights of those who have been convictedof "any crime." Rather, this statutory scheme is consistent with the Supreme Court'sdetermination in Heller that, although individuals may have the constitutional right tobear arms in the home for self-defense, this right is not unlimited and may properly be subject tocertain prohibitions (see District of Columbia v Heller, 554 US at 626). Accordingly, thechallenged statutes do not violate the Second Amendment or Civil Rights Law § 4, andthey are not unconstitutionally overbroad.
The defendant's contentions raised in Points II, V, and VI in his brief are without merit. Hiscontentions raised in Point III of his brief are unpreserved for appellate review. Covello, J.P.,Angiolillo, Dickerson and Roman, JJ., concur.