The defendant is charged with Criminal Possession of a Firearm pursuant to Penal Law §265.01-b(1) by way of indictment. The defendant has moved to dismiss the indictment as it is in violation of his Second Amendment Rights and further, that the Penal Law statute of Criminal Possession of a Firearm is unconstitutional. The notice of motion was served on the Erie County District Attorney's Office as well as the New York Attorney General's Office. The Erie County District Attorney's Office has opposed the defendant's motion. The case came before this Court for oral argument on February 9, 2023.

The defendant has argued that post-New York State Rifle & Pistol Association, Inc. v Bruen, 142 S.Ct 2111 (2022), the Criminal Possession of a Firearm Statute in New York is unconstitutional; specifically, that the Supreme Court struck down the requirement of proper [*2]cause being required to obtain an unrestricted pistol permit. The defendant has argued that he is a "law abiding, adult citizen, lacking sufficient "proper cause" to qualify for an unrestricted license permitting him to carry a handgun outside the home." (Defense Motion, Page 6). In his affidavit contained within the defense supplemental affidavit, the defendant states that, "As of July 4, 2022, I was not prohibited from possessing a firearm by reason of age, prior convictions, arrests, or any type of mental health hold." (Defense Supplemental Affidavit, Paragraph 2). There is nothing offered by the defendant that indicates he has ever applied for a New York State pistol permit, or has been denied such a permit.

The People have argued that the defendant does not have standing to challenge the statute and further, that despite the ruling in Bruen, New York State is still permitted to maintain a pistol permit licensing system.

The first issue this Court must address is whether the defendant has standing to challenge this statute. As addressed above, there is no indication this defendant has ever applied for or been denied a pistol permit in New York State. Other Courts which have opined on the issue have held that failure to do so results in the lack of standing. In People v Williams, 76 Misc 3d 925 (2022), the Court held, "This court agrees with the People that defendant lacks standing because he did not apply for a license and he has not made a "substantial showing" that submitting an application "would have been futile" (see DeCastro, 682 F.3d 160 [2d Cir. 2012])." In People v Rodriguez, 76 Misc 3d 494 (2022), the Court held;

"Defendant does not claim to have a license. He does not claim to have sought a license. He does not claim to have been denied a license, either fairly or unfairly, whether because of a failure to establish a special need or for some other reason (see e.g. Penal Law § 400.00 [1] [c]-[e] [establishing ineligibility for firearm license if, for example, applicant has been convicted anywhere of a felony or serious offense; is a fugitive from justice; or is an unlawful user of or addicted to any controlled substance])...On that basis alone, defendant's challenge must fail...Rather, having failed to seek a license, he lacks standing to bring any challenge to the licensing regime (see United States v. Decastro, 682 F.3d 160, 164 [2d Cir. 2012] ["(T)o establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy."

Since this defendant has not applied for or been denied a pistol permit, he does not have standing to challenge the New York pistol permit licensing law. The defendant has suffered no prejudice and has no interest in this statute. The defendant may challenge the constitutionality of the Criminal Possession of a Firearm statute, however, as he is currently facing indictment for that charge.

This Court has recently ruled on this issue of the constitutionality of a Penal Law criminal possession of a weapon statute in People v Brundige, 2023 WL 1490146 (2023). The present case differs from Brundige in two ways. First, in Brundige, the defendant was charged with Criminal Possession of a Weapon in the Second Degree and here, the defendant is charged with Criminal Possession of a Firearm. This distinction is not relevant for these purposes as the elements of the offenses are identical other that whether the firearm is loaded. The second difference in these cases is that in Brundige the defendant was a prior felon. In both cases, however, an individual who has never applied for a New York State pistol permit was arrested with an illegal handgun.

As previously mentioned, the defendant's arguments as to why the Criminal Possession of a Firearm statute is unconstitutional relies primarily on Bruen and District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783.

The New York State pistol permit licensing procedure is outlined in Penal Law §400.00. This Penal Law section outlines the requirements and restrictions in obtaining a pistol permit. While aspects of the law has changed post-Bruen, the ability of states to regulate firearm possession through a permitting process has not. "The Bruen decision affirms a state's right to impose some restrictions on weapon ownership." Kamenshchik v Ryder, 2023 NY Slip Op. 23026. In Bruen, the United State Supreme Court ultimately held, "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion." Bruen, 2156. The holding in Bruen is narrow and focused solely on New York's previous "proper cause" standard. The Court in Bruen discussed the Heller case stating,

"In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home."

The Court, however, on multiple occasions clarified that a state has the right to require a permit and to regulate the possession of a handgun. Citing Heller, the Court in Bruen wrote, "We noted that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id., at 626, 128 S.Ct. 2783. "From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Bruen, 2128. In a concurring opinion, Justice Alito wrote, "That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), about restrictions that may be imposed on the possession or carrying of guns." Bruen, 2157. In a second concurring opinion, authored by Justice Kavanaugh with Chief Justice Roberts joining, held, "First, the Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court's decision does not affect the existing licensing regimes—known as "shall-issue" regimes—that are employed in 43 States." And further, "Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing [*3]requirements like those used by the 43 shall-issue States." Finally, in citing McDonald v City of Chicago, Illinois, 561 U.S. 742,

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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."

One issue of note is that in the Bruen decision, the Court repeatedly pointed out that the petitioners were, "law-abiding, adult citizens." Additionally, the petitioners in Bruen not only applied for, but possessed restricted New York pistol permit licenses (previously, in additional to "concealed carry," New York had restricted pistol permits for "target-hunting" and "business protection."). Therefore, the petitioners in Bruen were in a different class of individuals than the defendant in this case. While the defendant in this case may have been a law-abiding citizen, as noted above in the Court's discussion on standing, there is no indication this defendant has ever applied for a pistol permit.

Ultimately, Bruen, did not declare New York State pistol permitting scheme to be unconstitutional. In Williams,

"Defendant asserts that Bruen rendered unconstitutional both New York's licensing scheme and the Penal Law sections criminalizing possession of a firearm without a license. Alternatively, defendant argues that this court should find the relevant Penal Law sections unconstitutional under Bruen's "historical tradition test" because the government cannot demonstrate that there was no blanket prohibition on carrying firearms outside the home at the time of the ratification of the Constitution (Id. at 2126)...This Court joins the chorus of other judges in holding that the Bruen decision does not preclude the prosecution for unlawful possession of a firearm of a defendant who did not previously apply for, and was denied, a license. The Court further finds that the Bruen decision has no bearing on the constitutionality of the statutes criminalizing possession of a firearm because, as expressly stated in Bruen, states maintain the right under the Federal Constitution to require gun licenses for lawful possession...Specifically, the Court struck down just that portion of the licensing statute that requires an applicant to show "proper cause exists" for an unrestricted license to "have and carry" a concealed pistol or revolver outside one's home or place of business (Id. at 2122)."

Also, in People v Caldwell, 76 Misc 3d 997(2002) "Thus, Bruen distinctly left intact a state's ability to impose a licensing scheme, as well as criminalize the possession of an unlicensed firearm." And Rodriguez, "Defendant, however, misreads both Bruen and the Second Amendment as conferring an unqualified entitlement to possess deadly weapons in public places without restriction." Further, "What the Court did not hold is that the Constitution forbids a state from requiring citizens to obtain a license in order to engage in such activity, so long as the ability to obtain the license is not thwarted by an obligation to demonstrate a unique need to carry [*4]such weapons beyond the general desire to protect oneself."

The Court in Bruen did not invalidate the ability of New York to employ pistol permit licensing rules and regulations. Simply stated, Bruen merely invalidated New York's "proper cause" standard. These ruling have no impact on the constitutionality of New York's Criminal Possession of a Weapon Penal Law statues. The defendant in this case had the absolute right to apply for a New York State pistol permit. The defendant chose not to do so and allegedly illegally carried a firearm opening himself up to prosecution under the criminal possession of a weapon Penal Law statutes of New York. The defendant's claims that he would not have received an unrestricted permit because he did not have a specialized need for self-protection are without merit. The defendant never applied for a permit and therefore he cannot claim to know the outcome of the permitting process.

Therefore, based on the foregoing, the Criminal Possession of a Weapon statute as challenged is Constitutional and the defendant's motion to dismiss the indictment is DENIED.