People v. Tucker

181 A.D.3d 103

117 N.Y.S.3d 401

The PEOPLE of the State of New York, Respondent,

v.Melquan TUCKER, Defendant–Appellant.

864

KA 18–00147

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: January 31, 2020

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DENNIS A. RAMBAUD OF COUNSEL), FOR INTERVENOR-RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, AND NEMOYER, JJ.

OPINION AND ORDER

Opinion by Peradotto, J.:

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

We conclude that New York's criminal prohibition on the possession of a handgun in the home without a license, as applied to defendant, does not violate the Second Amendment of the Constitution of the United States.

I

Upon executing a no-knock search warrant, police officers entered a residence in which defendant and other people were present. While searching a bedroom, the police discovered a gun box in the closet containing a revolver, two cylinders, and ammunition. The police also discovered in that bedroom, among other things, defendant's driver's license and a bottle of medication prescribed to defendant. Later DNA testing also connected defendant to the revolver. It is undisputed that defendant did not have a license to possess a handgun, and defendant does not claim that he had applied for one. Additionally, when the police first entered the residence, another officer positioned outside had observed the codefendant jump from a first floor window of another bedroom and saw numerous baggies, later determined to contain heroin, fall from the codefendant's person. The police also seized a small digital scale from the kitchen of the residence.

Defendant and the codefendant were charged by joint indictment with criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ), and defendant was separately charged in the indictment with criminal possession of a firearm (§ 265.01–b [1] ). Defendant moved to dismiss the criminal possession of a firearm charge on the ground that the charge is unconstitutional as applied to him because it violates his right under the Second Amendment to possess the revolver in his home for self-defense. Defendant notified the Attorney General of the State of New York pursuant to Executive Law § 71 that he was challenging the constitutionality of Penal Law § 265.01–b (1). The People opposed the motion, and defendant replied in further support of his constitutional challenge. Supreme Court denied the motion.

Following trial, the jury rendered a verdict finding defendant guilty of criminal possession of a firearm ( Penal Law § 265.01–b [1] ) but acquitting him of the drug-related charge. Defendant now appeals, raising as his primary contention that the court erred in denying his motion to dismiss the charge of criminal possession of a firearm because, as applied to him, criminal prosecution under the statute for possession of an unlicensed firearm violates his right under the Second Amendment to possess the revolver in his home for self-defense. We note at the outset that the issue before us does not involve a challenge to any particular provision of the licensing requirement; instead, the central question is whether New York may constitutionally impose any criminal sanction whatsoever on the unlicensed possession of a handgun in the home.

II

New York has a long history of regulating the possession of firearms by persons within the state, particularly by way of a licensing requirement. In the latter part of the nineteenth century, the legislature enacted a law prohibiting any person under 18 years old from "hav[ing], carry[ing] or hav[ing] in his possession in any public street, highway or place in any city" a pistol or firearm of any kind without a license from a police magistrate of such city and making the violation thereof a misdemeanor (L 1884, ch 46, § 8; see also L 1883, ch 375). In 1905, the legislature amended the law to prohibit any person over 16 years old from carrying a concealed firearm in any city or village without a license and to further prohibit any person from selling or otherwise providing any pistol, revolver or other firearm to a person under 16 years old (see L 1905, ch 92, §§ 1, 2).

As has been recounted in prior cases (see e.g. Kachalsky v. County of Westchester, 701 F.3d 81, 84–85 [2d Cir.2012], cert denied 569 U.S. 918, 133 S.Ct. 1806, 185 L.Ed.2d 812 [2013] ), following an increase in shooting homicides and suicides committed with revolvers and other concealable firearms during the early twentieth century, as reported in a coroner's office study, the legislature enacted the Sullivan Law to address the rise of violent crimes associated with such weapons (see id. ; People ex rel. Darling v. Warden of City Prison, 154 App.Div. 413, 422–423, 139 N.Y.S. 277 [1st Dept. 1913] ; Revolver Killings Fast Increasing, N.Y. Times, Jan. 30, 1911, at 4, col 4). The law made it a misdemeanor to possess without a license "any pistol, revolver or other firearm of a size which may be concealed upon the person" "in any city, village or town of th[e] state" (L 1911, ch 195, § 1). Although the First Department, in rejecting a challenge to the law shortly after its passage, relied in part on the now-repudiated basis that the Second Amendment does not apply to the states (see Darling, 154 App.Div. at 419, 139 N.Y.S. 277 ), the court also reasoned that the right conferred by statute (see Civil Rights Law § 4 ; People v. Perkins, 62 A.D.3d 1160, 1161, 880 N.Y.S.2d 209 [3d Dept. 2009], lv denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009] ) was not violated by the law inasmuch as the legislature had "passed a regulative, not a prohibitory, act" in the proper exercise of its police powers to promote the safety of the public ( Darling, 154 App.Div. at 423, 139 N.Y.S. 277 ). The First Department noted that prior state laws regulating the carrying of concealed weapons had not "seem[ed] effective in preventing crimes of violence" and that the legislature had therefore determined to proceed "a step further with the regulatory legislation" concerning licensing in order to prevent criminals from possessing handguns ( id. ).

The law was subsequently amended and recodified, and today New York maintains its criminal prohibition on the possession of certain firearms, including pistols and revolvers, without a valid license, even if such firearms remain in one's home (see Penal Law §§ 265.00[3] ; 265.01[1]; 265.01–b [1]; 265.20[a][3] ).

III

The Second Amendment provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court of the United States has held that the amendment confers an individual right to keep and bear arms for lawful purposes, such as self-defense in the home (see District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008] ), and that the right is fully applicable to the states (see McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 [2010] ). The Court held that self-defense is the central component of the Second Amendment right and stated that "the need for defense of self, family, and property is most acute" in the home and that handguns are "the most preferred firearm in the nation to keep and use for protection of one's home and family" ( Heller, 554 U.S. at 628–629, 128 S.Ct. 2783 [internal quotation marks omitted]; see id. at 599, 128 S.Ct. 2783 ; see also McDonald, 561 U.S. at 767, 130 S.Ct. 3020 ). The Court thus struck down laws that effectuated complete bans on in-home possession of handguns (see McDonald, 561 U.S. at 791, 130 S.Ct. 3020 ; Heller, 554 U.S. at 635, 128 S.Ct. 2783 ).

The Court also recognized, however, that "the right secured by the Second Amendment is not unlimited" and has never been understood as allowing one "to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" ( Heller, 554 U.S. at 626, 128 S.Ct. 2783 ; see generally Robertson v. Baldwin, 165 U.S. 275, 281–282, 17 S.Ct. 326, 41 L.Ed. 715 [1897] ). The Court made clear that its holdings "did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms’ " ( McDonald, 561 U.S. at 786, 130 S.Ct. 3020, quoting Heller, 554 U.S. at 627–628, 128 S.Ct. 2783 ). Such "presumptively lawful regulatory measures" were offered "only as examples" rather than as an exhaustive list ( Heller, 554 U.S. at 627 n 26, 128 S.Ct. 2783 ).

In light of the lack of detailed guidance offered in Heller and McDonald regarding the manner in which Second Amendment challenges to firearms legislation should be evaluated, the courts began to develop an analytical framework for reviewing such challenges (see generally New York State Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d 242, 252–254 [2d Cir.2015], cert denied ––– U.S. ––––, 136 S.Ct. 2486, 195 L.Ed.2d 822 [2016] ). Appellate courts, including the Court of Appeals, have generally applied or taken an approach consistent with a two-step analysis in which they first " ‘determine whether the challenged legislation impinges upon conduct protected by the Second Amendment’ " and, if so, they then "determine the appropriate level of scrutiny to apply and evaluate the constitutionality of the law using that level of scrutiny" ( United States v. Jimenez, 895 F.3d 228, 232 [2d Cir.2018] ; see e.g. People v. Hughes, 22 N.Y.3d 44, 51, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013] ; New York State Rifle & Pistol Assn., Inc., 804...