People v. Johnson

65 Misc.3d 1024

110 N.Y.S.3d 283

PEOPLE

v.Austin T. JOHNSON

CR-4228-19

City Court, New York, City of Rome.

Decided on October 15, 2019

Appearances by counsel: Scott D. McNamara, Esq., Oneida County District Attorney, (Steven G. Cox, Esq., Assistant District Attorney) for the People, Frank J. Nebush, Jr., Esq. Oneida County Public Defender (Jessica P. Cunningham, Esq., of counsel) for the defendant and Letitia James, Esq. Attorney General of the State of New York (Nikki Kowalski, Esq., Deputy Solicitor General for Criminal Matters)

Gregory J. Amoroso, J. On July 1, 2019, the defendant was charged with Criminal Possession of a Weapon in the 3rd Degree in violation of New York State Penal Law § 265.02(1) and upon arraignment, a motion was made by the District Attorney's Office to amend the charge to Criminal Possession of a Weapon in the 4th Degree in violation of Penal Law § 265.01(1). Such request was granted and the matter proceeded accordingly.

Subsequently, the defendant filed a motion seeking dismissal of the pending charge pursuant to Criminal Procedure Law 170.35(1)(a). The defendant asserts in his motion papers that the accusatory instrument is defective on the basis that a recent federal case determined that the statute defining the underlying offense is unconstitutional as it applies to a ban on stun guns in the State of New York.

On September 12, 2019, the Office of the New York State Attorney General submitted correspondence stating that pursuant to New York Executive Law§ 71 and CPLR § 1012(b), the office would not intervene in this matter and requested the Court take no adverse inference due to the non-participation. The Court hereby grants the request and will note that no adverse inference shall be made in this proceeding.

On September 20, 2019, the People filed an Answering Affirmation opposing the motion to dismiss, arguing that New York State Courts are not bound by decisions rendered by lower federal courts when implications of Constitutional rights are in question. The People further indicated and cite case law stating that a party alleging the constitutionality of a statute has a "heavy burden" of demonstrating that a law is unconstitutional "beyond a reasonable doubt".

The Court will note that a claim setting forth that an accusatory instrument is jurisdictionally defective may be raised at any time and Criminal Procedure Law § 170.30(1)(a) allows a defendant to move for dismissal of a misdemeanor charge upon the ground that it is defective within the meaning of CPL § 170.35. Pursuant to CPL § 170.35(1)(c), an accusatory instrument is defective when "the statute defining the offense charged is unconstitutional or otherwise invalid"

Constitutional Challenge of State Statute

Upon entertaining a motion made by a party challenging the constitutionality of a statute enacted by the legislature of the State of New York, the burden rests upon the moving party to demonstrate the "infirmity beyond a reasonable doubt, and only as a last resort will courts strike down legislative enactments on the ground of unconstitutionality" ( Schultz Management v. Board of Standards and Appeals of City of New York, 103 A.D.2d 687, 477 N.Y.S.2d 351 [1st Dept. 1984] quoting Sgaglione v. Levitt, 37 N.Y.2d 507, 375 N.Y.S.2d 79, 337 N.E.2d 592 [1975] ; People v. Buchholz, 53 Misc. 3d 563 [Crim. Ct., Bronx County 2016] ). Furthermore, when interpreting a statute, the Court must, if possible, preserve the legislation which has been enacted as "legislative statutes enjoy strong presumptions of constitutionality" ( People v. Portnoy, 140 Misc. 2d 945, 535 N.Y.S.2d 305 [City Ct. N.Y., Bronx County 1988], citing People v. Pagnotta , 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 [1969] ).

The statute under scrutiny and subject to this proceeding provides that a person "is guilty of possession of a weapon in the fourth degree when he or she possesses any firearm, electronic dart gun, electronic stun gun , gravity knife, switchblade knife, pilum ballistic knife, mental knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or Kung Fu star" ( Penal Law § 265.01(1) ). An"electronic stun gun" is defined by Penal Law § 265.00 as "any devise designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electronic shock to such person."

The defendant argues that the recent case involving Avitabile v. Beach, 368 F. Supp. 3d 404 (N.D. N.Y. 2019), which found that the ban on stun guns in New York State is unconstitutional, provides the basis necessary to warrant dismissal of the underlying charge against the defendant. However, when undertaking an analysis of the constitutionality of a statute, a lower federal court's finding is persuasive but not binding on a lower state court as "both sets of courts are governed by the same reviewing authority of the Supreme Court" ( People v. Battease, 74 A.D.3d 1571, 904 N.Y.S.2d 241 [3rd Dept. 2010] ). Furthermore, it has been held "interpretation of a federal constitutional question by the lower federal courts may serve as useful and persuasive authority" ( People v. Kin Kan, 78 N.Y.2d 54, 571 N.Y.S.2d 436, 574 N.E.2d 1042 [1991] ).

The defendant also asserts that dismissal of the charges against the defendant is appropriate as the United States Supreme Court has allegedly found that "total bans on stun guns are unconstitutional" Caetano v. Massachusetts, ––– U.S. ––––, 136 S.Ct. 1027, 194 L.Ed.2d 99 [2016]. However, it should be noted that upon analysis of the Supreme Court's decision, the defendant's conclusion is not reflective of the holding in Caetano . Simply put, the Supreme Court found that the Supreme Judicial Court of Massachusetts was incorrect in their application of prior binding authority set forth in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008]. Specifically, the Court in Caetano found "the explanation the Massachusetts court offered for upholding the law contradicts this Court's precedent" and the matter was remanded for further proceedings ( Caetano v. Massachusetts , ––– U.S. ––––, 136 S.Ct. 1027, 194 L.Ed.2d 99 [2016] ).

As such, an outright dismissal of the charges filed against the defendant is not warranted and a further analysis must be undertaken as to whether or not the defendant's constitutional challenge is meritorious in nature.

Second Amendment & New York Law

The Court will note that New York State Civil Rights Law § 4 states "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed". However, such right is one that is not absolute and restrictions which are reasonable in nature maybe placed thereon ( District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008] ).

While the United Supreme Court has found that the Second Amendment of the United States Constitution conveys upon individuals the right to keep and bear arms as "a means of self-defense within the home, it also held that the right conferred by the Second Amendment - and by extension Civil Rights Law § 4" is not absolute and such rights are subject to reasonable restrictions ( People v. Perkins, 62 A.D.3d 1160, 880 N.Y.S.2d 209 [3rd Dept. 2009] ).

Since the enactment of Penal Law § 265.01(1), there have been amendments to this statute wherein additional weapons have been subject to prohibition in New York, which has led to various Courts undertaking an analysis of the constitutionality of the statute pursuant to the Second Amendment. Most recently, on September 25, 2019 a determination was made that a defendant should be afforded the right on appeal to be heard as to whether the statute "as applied to electronic stun guns" is unconstitutional ( People v. Broadnax, 175 A.D.3d 1549, 106 N.Y.S.3d 892 [2nd Dept. 2019] ).

Furthermore, the Courts in New York have taken up matters similar in nature whereby a defendant was charged with Criminal Possession of a Weapon in the Fourth Degree as a result of an alleged possession of a gravity knife ( People v. Buchholz , 53 Misc. 3d 563, 39 N.Y.S.3d 684 [City Ct. Bronx County 2016] ). In Buchholz , counsel for the defendant argued that the charges should be dismissed based upon the constitutionality of the law and specifically argued that such statute violates the defendant's right to keep and bear arms under the Second Amendment. The Court found that the defendant did not "meet his heavy burden" and that the statute itself did not equate to a violation of the United States Constitution.

Recently, a defendant also failed to successfully challenge the lawfulness of the same statute by overcoming the strong presumption of constitutionality ( People v. Williams, 65 Misc.3d 430, 106 N.Y.S. 3d 738 [County Ct., Columbian County 2019] ). Furthermore, when this portion of the Penal Law has come under scrutiny, New York courts have applied the "heavy burden" standard with the guidance set forth in federal case holdings to determine whether there was an infringement upon an individual's Second Amendment rights. ( People v. Williams, 65 Misc.3d 430, 106 N.Y.S. 3d 738 [County Ct., Columbian County 2019] ).

Therefore, based on the various challenges to PL§ 265.01(1) within the New York State courts, this Court must make further inquiry into the standard set forth by federal case law for guidance in making a determination as to the constitutionality of an adopted law, while also applying the high standard New York courts have mandated when a party is seeking to invalidate a statute.

Federal Law, Constitutionality and Findings

The defendant argues the statute under which the defendant is charged violates the Second Amendment of the United States Constitution as an absolute ban on stun guns is overly broad in nature, even upon consideration of public...