Tuesday, November 19, 2013

Two CPW Decisions From the Court of Appeals

The Court of Appeals decided two CPW cases today.

In People v Jones (#185 decided 11/19/13), defendant was charged with CPW2 for possessing a weapon in his home, having been previously convicted of a crime.  He claimed that, despite his prior conviction, he could rely on PL 265.03(3)'s exception for home or business.  The Court of Appeals agreed with the Appellate Division decision below that PL265.03(3) creates an exception to the home or business exception.  It provides that possession of a loaded firearm "shall not, except as provided in subdivision one ... of 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business."  PL 265.02(1) applies to those who have previously been convicted of a crime. 

 Defendant had contended that the language meant that such possession was CPW3.  Defendant argued that, prior to 2006, possession outside of a home or business was CPW3, and the legislature made an error in drafting the statute.  The CoA held that the legislative history showed that the Legislature intended to increase CPW from 3 to 2 where the defendant had a prior conviction yet possessed a loaded firearm in his home or business.  Unhelpfully, there was a drafter's memo to the relevant legislation which said pretty much that.

Jones is also important because the Court of Appeals held that service by the court of a copy of an order does not start the clock for filing a notice of appeal.  Only service by the prevailing does so, and defendant never served the order on the People.  The notice of appeal, which would have been too late if the clock had started the day the court gave copies to the parties, was not untimely.

In People v Hughes (#184 11/19/13) the Court of Appeals rejected defendant's argument that, while punishing the defendant for CPW was okay, punishing it as a C felony violated the second amendment.  Defendant possessed an unregistered handgun at his ex-girlfriend's apartment, and used it (as found by the judge as trier of fact at the trial), to justifiably shoot a man defendant knew as "Maniac Guns" when he pulled a gun on defendant.  Defendant had a prior conviction for Resisting Arrest.  Under the decision above in Jones, defendant was guilty of CPW2.  Without the prior it would have been only CPW4.  The Court of Appeals rejected the argument that converting an A misdemeanor into a C felony based on a prior misdemeanor conviction violated the second amendment.  The Court held that, since only a "serious offense" would prevent the defendant from getting a license to possess the hangun in question, "there is no apparent reason why he could not have obtained a license to have a handgun in his home."  I have to wonder whether this last statement is in fact true, since unprosecuted complaints are sufficient to revoke a pistol permit already granted (Peters v Randall, 2013 WL 6038222  4th Dept Decided Nov 15, 2013).  The court noted that the issue was a novel one - whether there are limits to the increases a state can make to the severity of punishments for possessing weapons - but chose not to address it beyond saying that without strict scrutiny, the defendant could not prevail, and this was an intermediate scrutiny issue.

People v Hughes is important because the Court of Appeals upheld the Appellate Division decision that defendant's purported CPL 330 motion was sufficient to preserve his claim that the CPW2 conviction violated the second amendment.  The People argued that the CPL 330 motion was too late, and the CoA said "They had a point".  However, the court noted that the prosecution did not suggest that they had been prejudiced by the delay, and the trial court had ruled on the merits of the motion.  The Court of Appeals treated that the motion as one made under CPL 210.20, even though wrongly denominated a CPL 330 motion.  "The court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of" such a motion on the merits (CPL 255.20[3]).  Because the issue was raised by defendant and decided by the trial court, the issue was preserved.

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