Supreme Court, Bronx County, June 2, 2023

Legal Aid Society (Alice Swenson of counsel) for Frederick Hidalgo, defendant.

The Bronx Defenders (Lawrence Pierce of counsel) for James Santana, defendant.

Darcel D. Clark, District Attorney (Brianna Pryce of counsel), for the People.

On September 30, 2022, indictment 73836-22 was filed against defendants, charging them with one count each of criminal possession of a weapon in the second degree, in violation of Penal Law § 265.03 (3); criminal possession of a firearm, in violation of Penal Law § 265.01-b (1); criminal possession of a weapon in the fourth degree, in violation of Penal Law § 265.01 (1); and possession of ammunition, in violation of Administrative Code of the City of New York § 10-131 (i) (3). Defendants were arraigned upon that indictment on October 6, 2022, and an omnibus motion schedule was set. On January 24, 2023, the Honorable Steven Hornstein dismissed count 1 (criminal possession of a weapon in the second degree) and count 4 (possession of ammunition), finding that insufficient proof was presented to the grand jury to sustain those counts. The court also granted Huntley, Mapp, Ingle, and Dunaway hearings. The case was adjourned for the People to re-present the dismissed charges to another grand jury. On March 31, 2023, indictment 71331-23 was filed against defendants, charging each of them with one count of criminal possession of a weapon in the second degree, in violation of Penal Law § 265.03 (3). On April 12, 2023, defendants were arraigned on the new indictment and the court deemed that indictment 73836-22 was dismissed and superseded by indictment 71331-23. On April 18, 2023, however, the case was recalled and the court indicated that it had mistakenly dismissed indictment 73836-22 as superseded. The court reinstated the dismissed indictment and consolidated the indictments under the original indictment number, 73836-22. The court also ordered a new omnibus motion schedule on the re-presented count. Defendants submitted their omnibus motions and the People responded. Defendants' omnibus motion with respect to the re-presented count is decided as follows:

Grand Jury

Defendants' motion to inspect the grand jury minutes is granted to the extent that the court will conduct an in camera inspection of the minutes. Upon inspection, the court concludes that the evidence before the grand jury was legally sufficient to support the sole count set forth in the re-presented indictment. (See CPL 190.65, 210.30; People v Jensen, 86 NY2d 248, 251-252 [1995].) The minutes also reveal that "[t]he prosecutor's legal instructions were adequate and contained no defects rising to the level of impairing the integrity of the [*2]proceeding, as{**80 Misc 3d at 331} would be required for dismissal." (People v Hopkins, 276 AD2d 256, 257 [1st Dept 2000].) Defendants' remaining arguments relating to the grand jury proceedings have been reviewed and found to be without merit. Defendants' motion to dismiss or reduce the charge in the indictment is therefore denied.

Defendants' application for the release of the grand jury minutes is denied. (See CPL 210.30 [3]; People v Robinson, 98 NY2d 755, 757 [2002].) Nevertheless, to the extent that the People have not already done so, the People are reminded of their discovery obligations, under CPL 245.20 (1) (b), to provide the defense with the portions of the grand jury minutes that contain witness testimony.

Constitutional Challenge under Bruen

In the re-presented indictment, defendants are each charged with one count of criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3). Defendants ask this court, in light of the Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]), to dismiss the indictment, arguing that the charges violate their Second and Fourteenth Amendment rights under the United States Constitution. The People filed a response in opposition.

Defendants' arguments misconstrue "both Bruen and the Second Amendment as conferring an unqualified entitlement to possess deadly weapons in public places without restriction." (People v Rodriguez, 76 Misc 3d 494, 495 [Sup Ct, NY County 2022].) In fact, Bruen reaffirmed that "there is no Second Amendment right 'to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' " (People v Brown, 2022 NY Slip Op 32290[U], *2 [Sup Ct, Bronx County 2022] [emphasis added], citing Bruen, 597 US at 21.) The Supreme Court in Bruen merely struck down the "proper cause" requirement for "law-abiding" concealed carry permit applicants; it did not address who may lawfully possess a gun, "the requirements that must be met to buy a gun . . . [or the] restrictions that may be imposed on the possession or carrying of guns." (Bruen, 597 US at 72 [Alito, J., concurring], citing District of Columbia v Heller, 554 US 570 [2008], and McDonald v Chicago, 561 US 742 [2010].) Like other constitutionally protected rights, the right to bear arms is "subject to certain reasonable, well-defined restrictions." (Bruen, 597 US at 70 [citation omitted].) As such, the Bruen decision has no bearing on the constitutionality of the charges in this case.{**80 Misc 3d at 332}

While Penal Law § 400.00 (1) (a) prohibits people between the ages of 18 and 20 from obtaining a firearms license, and defendants fall within that age range, the Supreme Court's decision in Bruen did not overturn those restrictions. (Bruen, 597 US at 73 [Alito, J., concurring] ["Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21" (citation omitted)].) As noted previously, the Bruen Court recognized that there are "certain reasonable, well-defined restrictions" on the right to bear arms. (Bruen, 597 US at 70 [citation omitted].) Age-based restrictions are "consistent with the Nation's historical tradition of firearm regulation" and therefore permissible under the Second Amendment. (Bruen, 597 US at 24; see Reese v Bureau of Alcohol Tobacco Firearms & Explosives, 647 F Supp 3d 508 [WD La, Dec. 21, 2022, 6:20-CV-01438] [finding, post-Bruen, that a federal statute restricting sale of firearms was constitutional where age-based restrictions were consistent with a "longstanding, historical tradition . . . of age-(based) and safety-based restrictions on the ability to access arms"]; National Rifle [*3]Assn. of Am., Inc. v Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F3d 185, 204 n 17 [5th Cir 2012] [analyzing various colonial statutes to demonstrate that, historically, States had the "discretion to impose age qualifications on service, and several States chose to enroll only persons age 21 or over, or required parental consent for persons under 21," such that States were permitted under the Second Amendment to regulate the age of a person permitted to bear arms], abrogated by New York State Rifle & Pistol Assn., Inc. v Bruen, 597 US 1 [2022]; Mitchell v Atkins, 483 F Supp 3d 985, 992 [WD Wash 2020] ["At common law and at the time of the adoption of the Constitution, the age of majority was 21 years. . . . It was not until the 1970s that states lowered the age of majority to 18"], vacated & remanded 2022 WL 17420766, 2022 US App LEXIS 33735 [9th Cir, Dec. 2, 2022, No. 20-35827]; Lara v Evanchick, 534 F Supp 3d 478, 489 [WD Pa 2021] ["(T)he established consensus of federal appellate and district courts from around the country is that age-based restrictions limiting the rights of 18-20-year-old adults to keep and bear arms fall under the 'longstanding' and {**80 Misc 3d at 333}'presumptively lawful' measures recognized by the Supreme Court in Heller as evading Second Amendment scrutiny"].)^[FN*]

For these reasons, defendants' motion to dismiss the indictment as a violation of their Second Amendment rights is denied.

Bill of Particulars, CPL Article 245, and Brady

Defendants' request for a bill of particulars is denied. The criminal court complaint, indictment, police paperwork, and affirmation in response to defendants' motion "adequately apprise[ ] defendant of the charges against him with sufficient specificity to enable him to prepare and conduct a defense." (People v Elliot, 299 AD2d 731, 732 [3d Dept 2002]; CPL 200.95.)

To the extent the People have not previously done so, the People are directed to preserve and provide pretrial disclosure of all materials subject to CPL 245.20 and 200.95 that are not subject to delayed disclosure.

The People's request for reciprocal discovery is granted. Defendants are ordered to comply with the reciprocal discovery requirements set forth in CPL 245.20 (4) and file a certificate of compliance pursuant to CPL 245.50 (2).

The People are reminded of their Brady/Vilardi obligations.

Statement Evidence

Defendants' motion to suppress statement evidence for which notice was served or, in the alternative, for a Huntley/Dunaway hearing is granted to the extent that a Huntley/Dunaway hearing is ordered.

With respect to defendants' motion to preclude statement evidence for which notice was required under CPL 710.30, but not served, the People are directed to advise the court and the defense of any such evidence and whether good cause exists for the delay in such notice, so that a proper determination of their admissibility can be made before trial.{**80 Misc 3d at 334}[*4]

Physical Evidence

Defendants' motion to suppress physical evidence or, in the alternative, for a Mapp/Ingle hearing is granted to the extent that a Mapp/Ingle hearing is ordered.

Identification Evidence

With respect to defendants' motion to preclude identification evidence for which notice was required under CPL 710.30, but not served, the People are directed to advise the court and the defense of any such evidence and whether good cause exists for the delay in such notice, so that a proper determination of their admissibility can be made before trial.

Severance

Defendant Santana's motion for severance is deferred to the trial court for decision after the above-ordered suppression hearings have been held.

Sandoval

To the extent the People have not already done so, the People are directed to notify defendants, within the time periods required by statute, of all specific instances of defendants' prior criminal, vicious, or immoral conduct, whether charged or uncharged, of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching defendants' credibility at trial. (See CPL 245.20.)

Defendants' request for a Sandoval hearing is deferred to the trial court.

This court acknowledges that other federal jurisdictions, post-Bruen, have found no historical tradition of age-based restrictions on the ability to access firearms. However, this court is persuaded by the reasoning of the Court in Reese v Bureau of Alcohol Tobacco Firearms & Explosives and adopts its historical analysis here.