| People v Wallace |
| 2017 NY Slip Op 01071 [147 AD3d 1494] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Akeem Wallace, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Jack J. Niejadlik of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered May 8, 2014. The judgment convicted defendant, after a nonjury trial, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofcriminal 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 accidentallyshot himself in the leg while in the lobby area of the restaurant. Defendant argues that he shouldfall within the exception set forth in the subdivision, which provides that possession constitutesonly 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 thelegal sufficiency of the evidence based upon the "place of business" exception, inasmuch as heunsuccessfully argued that issue before trial, defendant need not "repeat the argument in a trialmotion to dismiss in order to preserve the point for appeal" (People v Finch, 23 NY3d 408, 410 [2014]). Nevertheless, thecontention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Although the "place of business" exception is not statutorily defined, it has been "construednarrowly by the courts in an effort to balance 'the State's strong policy to severely restrictpossession of any firearm' . . . with its policy to treat with leniency personsattempting to protect certain areas in which they have a possessory interest and to whichmembers of the public have limited access" (People v Buckmire, 237 AD2d 151, 151[1997], lv denied 90 NY2d 902 [1997]; see People v Francis, 45 AD2d 431, 434[1974], affd on other grounds 38 NY2d 150 [1975]; People v Fearon, 58 AD2d1041, 1041 [1977], cert denied 434 US 1036 [1978]). Inasmuch as the evidence at trialestablished that defendant was prohibited from bringing a gun to work, we conclude that topermit defendant to be subjected only to a misdemeanor "would certainly controvert the meaningand intent of the statute" (Fearon, 58 AD2d at 1041).
All concur except Lindley, J., who dissents and votes to modify in accordance with thefollowing memorandum.
Lindley, J. (dissenting). I respectfully dissent. Defendant was convicted of criminalpossession of a weapon in the second degree under Penal Law § 265.03 (3), whichmakes 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 inBuffalo where he was employed as a manager. I agree with defendant that he possessed theweapon at his "place of business" inasmuch as he undisputedly worked at the restaurant inquestion and, thus, that the evidence is legally insufficient to establish that he violated section265.03 (3). I would therefore reduce defendant's conviction to criminal possession of a weapon inthe fourth degree (§ 265.01 [1]), a class A misdemeanor.
As cited by the People, there are several decades-old Appellate Division decisions thatnarrowly construe the home or place of business exception to apply only to persons "attemptingto protect certain areas in which they have a possessory interest and to which members of thepublic have limited access" (People v Buckmire, 237 AD2d 151, 151 [1997], lvdenied 90 NY2d 902 [1997]; see People v Francis, 45 AD2d 431, 434 [1974],affd on other grounds 38 NY2d 150 [1975]; People v Fearon, 58 AD2d 1041,1041 [1977], cert denied 434 US 1036 [1978]). The Courts in those cases determined, inessence, that the legislature could not possibly have meant that "place of business" literallymeans "place of business," and they therefore adopted a limited definition of that phrase, whichis not defined in the statute. In my view, the statute is clear and unambiguous on its face, andthere is thus no need to discern the legislature's intent. In any event, if the legislature had wantedto limit the places of business to which the exception of section 265.03 (3) applies, it could easilyhave done so.
Finally, although McDonald's employees may have been prohibited by their employer frombringing firearms to work, that would merely be grounds for terminating defendant's employmentor otherwise disciplining him; it would not make his conduct illegal. The legality of anemployee's conduct cannot and should not be determined by reference to an employee handbook.Present—Centra, J.P., Lindley, NeMoyer, Curran and Troutman, JJ.