Supreme Court, Bronx County, April 12, 2022

Legal Aid Society, Bronx (Nicolas Schumann-Ortega of counsel), for defendant.

Darcel D. Clark, District Attorney (David A. Henig of counsel), for plaintiff.

Defendant is charged by indictment No. 0773 with the crime of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and other related charges. Count Nos. 1-6^[FN1] of the indictment relate to defendant's alleged "straight" possession, purchase, disposition and concealment of a loaded .30 caliber Ruger pistol on or about February 27, 2020. Count No. 7, count No. 8, and count No. 9 of the indictment do not relate to [*2] defendant's alleged possession of the firearm. Defendant was arraigned on the current indictment on November 13, 2021, in Part SCA.

{**76 Misc 3d at 267}By notice of motion dated November 29, 2021, defendant moves for the dismissal of count Nos. 1-6 of the indictment on the ground that the licensing process of the City of New York for a "carry permit" violates the Second Amendment of the United States Constitution and the decision of the Supreme Court in District of Columbia v Heller (554 US 570 [2008]). Defendant contends that the licensing schema is "truly a standardless process" which is unconstitutional.

[1] The premise of defendant's argument is that New York's licensing requirements are constitutionally defective. However, because he failed to apply for a gun license in New York, he lacks standing to advance this argument.

As a general matter,

" 'to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy.' . . . Failure to apply for a license would not preclude [plaintiff's] challenge if he made a 'substantial showing' that submitting an application 'would have been futile.' Jackson-Bey, 115 F.3d at 1096 . . . He has therefore not made the substantial showing of futility necessary to excuse his failure to apply for a handgun license in New York." (United States v Decastro, 682 F3d 160, 164 [2d Cir 2012], cert denied 568 US 1092 [2013].)

Relying on Bach v Pataki (289 F Supp 2d 217, 222-224 [ND NY 2003], affd 408 F3d 75 [2d Cir 2005], cert denied 546 US 1174 [2006]), defendant concedes that "the general rule that requires civil plaintiffs to first submit to a challenged policy . . . is inapplicable to a criminal defendant charged with possessing an unlicensed gun so long as the defendant can show it would have been futile to apply [for the license]." (Defense counsel's affirmation dated Nov. 29, 2020 at 5.) In Bach the plaintiff was excused from the application/standing requirement because as a nonresident of New York State his application for a carry permit would have been automatically denied under Penal Law § 400.00. (Bach v Pataki at 222-224.)

Defendant has failed to submit any factual evidence to this court to support the proposition that he is statutorily automatically excluded from obtaining a permit under Penal Law § 400.00 like the plaintiff in Bach or that he could not possibly qualify for a carry permit under Rules of City of New York {**76 Misc 3d at 268}Police Department (38 RCNY) §§ 5-03 and 5-02, infra. Consequently, defendant's motion is denied for lack of standing.

In Heller,

"the Supreme Court struck down District of Columbia statutes prohibiting the possession of handguns in the home and requiring lawfully-owned firearms to be kept inoperable. (554 US at 635.) Rejecting the argument that the right 'to keep and bear arms' was connected with militia service (554 US at 595-619), the Court concluded that the Second Amendment codified an individual right to keep and bear arms for the core purpose of allowing law-abiding citizens to defend themselves, their families and their homes (554 US at 595, 628-630; see also McDonald, 561 US at [780], 130 S Ct at 3044 ['our central holding in Heller: that the [*3]Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home']).

"Two years later, in McDonald, the Court held that the Second Amendment right to keep and bear arms for self-defense is fully applicable to the states through the Fourteenth Amendment. (561 US at [791], 130 S Ct at 3050).

"Significantly, the Supreme Court unequivocally stated in Heller that 'the Second Amendment is not unlimited' (554 US at 626), that

" 'nothing 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' (id. at 626-627) and that the Court was identifying 'these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive' (id. at 627 n 26).

"In 'repeating those assurances' in McDonald, the plurality of the Court stated that, 'incorporation does not imperil every law regulating firearms' (561 US at [786], 130 S Ct at 3047). Indeed, federal {**76 Misc 3d at 269}district courts have rejected challenges to the firearms licensing schemes that were adopted in the District of Columbia and Chicago following Heller and McDonald. (Heller v District of Columbia, 698 F Supp 2d 179 [D DC 2010] [Heller II]; Ezell v City of Chicago, — F Supp 2d —, 2010 WL 3998104, 2010 US Dist LEXIS 108341 [ND Ill 2010].)" (People v Nivar, 30 Misc 3d 952, 955-956 [Sup Ct, Bronx County 2011] [footnotes omitted].)

In Nivar, defendant was charged with criminal possession of a weapon in the fourth degree and a violation of Administrative Code of the City of New York § 10-131 (b), based upon his possession of an air pistol. He argued, relying upon Heller, that New York's licensing provisions were unconstitutional.

The court concluded that New York's licensing scheme was constitutional because it was substantially related to the important governmental interest of "insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument." (People v Nivar at 962; see also People v Perkins, 62 AD3d 1160 [3d Dept 2009].)^[FN2] [*4]

{**76 Misc 3d at 270}The general requirements for obtaining a pistol license in New York State are contained in Penal Law § 400.00 (2) (a) and summarized in Nivar. The statute specifically provides

"for the issuance of a license 'for a pistol or revolver, other than an assault weapon or a disguised gun,' for a householder to 'have and possess in his dwelling.' The general statutory requirements for a license are that an applicant be 21 years of age or older, of good moral character, who has not been convicted of a crime or serious offense (as that term is defined in Penal Law § 265.00 [17]) or had a license revoked, who is not disqualified by reason of mental illness or the existence of an order of protection, and 'concerning whom no good cause exists for the denial of the license.' (Penal Law § 400.00 [1] [g]; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 400.00, at 66.)" (People v Nivar at 957.)

New York law

"prohibits the possession of a firearm absent a license. . . . (citing N.Y. Penal Law §§ 265.01 and 265.20(a)(3) ) . . . A general member of the public may apply for a handgun carry license (the 'License') to carry a concealed handgun for the purposes of self-defense, which a licensing officer must approve. . . . A licensing officer must determine whether a person meets the statutory requirements of New York Penal Law § 400.00 before the officer can grant a license. . . . New York Penal Law § 400.00(2)(f) requires that an applicant show that 'proper cause exists for the issuance thereof.' . . . Some licensing officers note restrictions on the license, such as 'hunting and target,' and refer to those licenses as 'restricted licenses.' . . . These licenses 'allow the licensee to carry a firearm only when engaged in those specified activities' but do {**76 Misc 3d at 271} not 'permit the carrying of a firearm in public for the purpose of self-defense.' . . . Licensing officers have 'some discretion in determining what constitutes "proper cause," ' but 'this discretion is cabined by the significant body of New York case-law.' . . . Under that caselaw, the applicant must 'demonstrate a special need for self-protection distinguishable from that of the general community' to satisfy the proper cause standard." (New York State Rifle & Pistol Assn., Inc. v Beach, 354 F Supp 3d 143, 145-146 [ND NY 2018], affd 818 Fed Appx 99 [2d Cir 2020], cert granted in part sub nom. New York State Rifle & Pistol Assn., Inc. v Corlett, 593 US —, 141 S Ct 2566 [2021].)

In New York State Rifle & Pistol Assn., Inc. v Beach, Robert Nash and Brandon Koch brought a federal civil rights 42 USC § 1983 action alleging that defendants George P. Beach II and Richard J. McNally, Jr., violated their individual Second Amendment rights when the defendants refused to grant the plaintiffs firearm licenses for self-defense.

The defendants moved to dismiss, contending that the court was bound by the Second Circuit's holding in Kachalsky v County of Westchester (701 F3d 81 [2d Cir 2012], cert denied sub nom. Kachalsky v Cacace, 569 US 918 [2013]). The court dismissed the action and stated as follows:

"Plaintiffs' constitutional challenge to New York Penal Law § 400.00(2)(f) is virtually identical to that in Kachalsky, 701 F.3d at 83-84, and, as Plaintiffs acknowledge, this Court is required to follow the binding precedents set by the Second Circuit. Monsanto v. United States, 348 F.3d 345, 351 (2d Cir. 2003); Preston v. Berryhill, 254 F.Supp.3d 379, 384-385 (N.D.N.Y. 2017). Plaintiffs acknowledge that the result they seek is contrary to Kachalsky, but believe that case was wrongly decided for the reasons explained by the District of Columbia Circuit in Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017). (Dkt No. 31, ¶ 6). In Wrenn, a divided panel held invalid a District of Columbia statute which 'direct[ed] the District's police chief to promulgate regulations limiting licenses for the concealed carry of handguns . . . to those showing a "good reason to fear injury to [their] person or property" or "any other proper reason for carrying a pistol." ' Wrenn, 864 F.3d at 655. {**76 Misc 3d at 272}The court dispensed with tiers-of-scrutiny analysis altogether to reach the conclusion that 'the law-abiding citizen's right to bear common arms must enable the typical citizen to carry a gun.' Id. at 668. Plaintiffs, seeking to have Kachalsky overturned, initiated this litigation. (Dkt. No. 31, ¶ 6).

"Accordingly, because the Second Circuit has expressly upheld the constitutionality of New York State Penal Law § 400.00 (2)(f), Plaintiffs' claims must fail." (New York State Rifle & Pistol Assn., Inc. v Beach at 148.)

Penal Law § 400.00 (2) (f) states: "A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to . . . have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof" (emphasis added). The Appellate Division, First Department has interpreted "proper cause" to mean "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." (Matter of Kaplan v Bratton, 249 AD2d 199, 201 [1st Dept 1998]; see also Matter of Fondacaro v Kelly, 234 AD2d 173 [1st Dept 1996], lv denied 89 NY2d 812 [1997] [denial of carry permit upheld where applicant alleged general fear for his safety but did not present any instances of threats, attacks or extraordinary danger].)

Under New York City Rules and Regulations, title 38: Police Department, chapter 5: Handgun Licenses, subchapter A: Issuance of Handgun Licenses, section 5-03 entitled "Carry and Special Handgun Licenses" states in its entirety as follows: [*5]

"In addition to the requirements in § 5-02,^[FN3] an applicant seeking a carry or special handgun license shall be required to show 'proper cause' pursuant to § 400.00(2)(f) of the New York State Penal Law. 'Proper cause' is determined by a review of all {**76 Misc 3d at 273}relevant information bearing on the claimed need of the applicant for the license. The following are examples of factors which . . . shall be considered in such a review.

"(a) Exposure of the applicant by reason of employment or business necessity to extraordinary personal danger requiring authorization to carry a handgun.

"Example: Employment in a position in which the applicant routinely engages in transactions involving substantial amounts of cash, jewelry or other valuables or negotiable items. In these instances, the applicant shall furnish documentary proof that her/his employment actually requires that s/he be authorized to carry a handgun, and that s/he routinely engages in such transactions.

"(b) Exposure of the applicant to extraordinary personal danger, documented by proof of recurrent threats to life or safety requiring authorization to carry a handgun.

"Example: Instances in which Police Department records demonstrate that the life and well-being of an individual is endangered, and that s/he should, therefore, be authorized [*6]to carry a handgun. The factors listed above are not all inclusive, and the License Division will consider any proof, including New York City Police Department records, which document the need for a handgun license. It should {**76 Misc 3d at 274}be noted, however, that the mere fact that an applicant has been the victim of a crime or resides in or is employed in a 'high crime area,' does not establish 'proper cause' for the issuance of a carry or special handgun license." (38 RCNY 5-03 [emphasis added].)

The plain and simple language of section 5-03 encapsulates the legal standard that was upheld in New York State Rifle & Pistol Assn., Inc. v Beach and Kachalsky.

[2] Both New York State courts and federal courts construing New York State law have consistently held that generally speaking New York State's licensing restrictions constitute reasonable and acceptable limitations that are related to protecting an important governmental interest. Consequently, defendant's argument that the New York State and New York City licensing requirements are unconstitutional because those requirements restrict certain persons from obtaining a carry permit for a handgun is rejected by this court. (See e.g. Matter of Corbett v City of New York, 160 AD3d 415 [1st Dept 2018], lv denied 31 NY3d 913 [2018];^[FN4] Kachalsky.)

[3] Defendant also argues that the licensing schema of the City of New York and of the NYPD (New York City Police {**76 Misc 3d at 275}Department) is unconstitutional because the fees associated with the application process total almost five hundred dollars and constitute a hardship for an indigent person. It is [*7]settled law that "[economic] hardship is no argument against the constitutional validity of an otherwise valid exercise of the State's police power" (Lyons & Co. v Corsi, 3 NY2d 60, 68 [1957] [citations omitted]). Furthermore, defendant has failed to submit any proof or evidence of his indigency to this court. Consequently, this portion of defendant's motion is denied.

Lastly, defendant contends that the licensing process is "arbitrary" and "standardless." Defendant contends that because the NYPD retains ultimate and broad discretion in determining to whom to grant licenses, it is empowered to deny licenses to otherwise qualified applicants.

Case law establishes that the denials have been rationally based upon appropriate standards and non-arbitrary requirements set forth in this decision and order. (See. e.g. Matter of Delgado v Kelly, 127 AD3d 644, 644 [1st Dept 2015], lv denied 26 NY3d 905 [2015] [denial upheld because petitioner made an untruthful statement on his application regarding a domestic violence incident that involved him, his wife and the police and this provided a rational basis to conclude that petitioner did not meet the good moral character standard]; Matter of Broadus v City of N.Y. Police Dept. [License Div.], 62 AD3d 527, 528 [1st Dept 2009] [finding that petitioner lacks the good moral character required to possess a pistol license is rationally supported by evidence of petitioner's arrest under Vehicle and Traffic Law § 1192 for driving while intoxicated, possession of a loaded firearm when arrested, refusal to take a breathalyzer test, and subsequent conviction under Vehicle and Traffic Law § 1192 (1)]; Matter of Perlov v Kelly, 21 AD3d 270, 271 [2005] [substantial evidence supported finding that license holder lacked good moral character required for possession of a pistol permit, in that he gave misleading testimony at hearing regarding his employment as a security guard, and submitted to investigator letters from two investigation services which were internally misleading].)

Apart from mere conjecture, defendant has failed to submit evidentiary support for his contention that the NYPD arbitrarily denies licensing applications in general or arbitrarily denied an application made by himself.

{**76 Misc 3d at 276}Accordingly, for all of the foregoing reasons, defendant's motion to dismiss count Nos. 1-6 of the indictment is denied.

Additionally, to the extent that defendant's motion requests time to make additional pretrial motions, that request is denied at this time on the ground that defendant's motion fails to provide the "good cause" for the granting of such relief as required by CPL 255.20.

"We reject defendant's contention that the statutes under which he was convicted violate the Second Amendment of the US Constitution . . . . Defendant's reliance on District of Columbia v Heller (554 US [570], 128 S Ct 2783 [2008]) is misplaced. While the United States Supreme Court concluded in that case that the Second Amendment confers a constitutionally protected individual 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 . . . is not absolute and may be limited by reasonable governmental restrictions (see District of Columbia v Heller, 554 US at [626], 128 S Ct at 2816).

"Unlike the statute at issue in Heller, Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a 'severe restriction' improperly infringing upon defendant's Second Amendment rights. Moreover, in our view, New York's licensing requirement remains an acceptable means of regulating the possession of firearms (see People v Morrill, 101 AD2d 927 [1984]; People v Ferguson, 21 Misc 3d 1120[A], 2008 NY Slip Op 52112[U], *4 [Crim Ct, Queens County 2008]) and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner (see District of Columbia v Heller, 554 US at [631], 128 S Ct at 2819).

"Here, defendant was not in his home at the time of the crime and did not have a valid pistol permit. Inasmuch as the relevant sections of the Penal Law are constitutionally sound and defendant's conduct did not conform to that which is protected by the Second Amendment . . . defendant's constitutional challenge lacks merit." (People v Perkins, 62 AD3d 1160, 1161-1162 [2009].)

"The requirements for the issuance of a Premises License are listed below. The license application shall be investigated, including a review of the circumstances relevant to the information provided in the application. During the pendency of the application, the applicant shall notify the License Division of any necessary correction to or modification of the information provided in the original application, or any change in her/his status or circumstances, which may be relevant to the application.

"The applicant shall:

"(a) Be of good moral character;

"(b) Have no prior conviction for a felony or other serious offense, as defined in § 265.00(17) of the New York State Penal Law, or of a misdemeanor crime of domestic violence, as defined in § 921(a) of title 18 of the United States Code;

"(c) Disclose whether s/he is or has been the subject or recipient of an order of protection or a temporary order of protection;

"(d) Have no prior revocation of a license nor be the subject of a suspension or ineligibility order issued pursuant to § 530.14 of the New York State Criminal Procedure Law or § 842-a of the New York State Family Court Act;

"(e) Disclose any history of mental illness;

"(f) Be free from any disability or condition that may affect the ability to safely possess or use a handgun;

"(g) Reside or maintain a principal place of business within the confines of New York City;

"(h) Be an applicant concerning whom no good cause exists for the denial of such license;

"(i) Be at least 21 years of age."

Footnote 4: In Corbett the Appellate Division stated:

"[t]he 'proper cause' element of New York's handgun licensing scheme (see Penal Law § 400.00 [2] [f]) passes intermediate constitutional scrutiny, as it is substantially related to the state's important interest in protecting public safety (see Kachalsky v County of Westchester, 701 F3d 81, 96-97 [2d Cir 2012], cert denied sub nom. Kachalsky v Cacace, 569 US 918 [2013]; see generally People v Hughes, 22 NY3d 44, 52 [2013] . . . ). Moreover, viewed as a whole, New York's handgun licensing scheme does not impose any blanket or near-total ban on gun ownership and possession (see Kachalsky, 701 F3d at 94-99).

"In addition to the 'proper cause' requirement specific to concealed carry licenses, the statute sets forth other requirements, including that the applicant be 'of good moral character' (Penal Law § 400.00 [1] [b]). The three questions on the handgun license application challenged by petitioner . . . are designed to elicit information that can assist the background investigation that is undertaken by the New York Police Department in connection with the application, and accordingly, are justified because they serve to promote the government's 'substantial and legitimate interest . . . in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument' (Matter of Warmouth v Zuckerman, 138 AD3d 752, 753 [2d Dept 2016] [internal quotation marks omitted]; see also Matter of Delgado v Kelly, 127 AD3d 644 [2015], supra)." (Matter of Corbett v City of New York, 160 AD3d 415, 415-416 [2018].)