Supreme Court, Erie County, February 2, 2023

Louis Mussari for defendant.

John J. Flynn, District Attorney (Megan Mahoney of counsel), for the People.

The defendant is charged with criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3) by way of indictment. The defendant has moved to dismiss the indictment pursuant to CPL 210.20 (1) (a); specifically, the defendant argues that Penal Law § 265.03 (3) 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 New York Attorney General's Office, through Assistant Attorney General Margaret Cieprisz, in a letter dated January 24, 2023, has indicated it will not intervene in this challenge. The Erie County District Attorney's Office has opposed the defendant's motion. The defendant submitted a supporting affirmation and the People responded with an answering affidavit. The case came before this court for oral argument on January 31, 2023.

The defendant argues, primarily, that New York State is a "may issue" licensing state (as opposed to a "shall issue" licensing state) and that after New York State Rifle & Pistol Assn., Inc. v Bruen (597 US —, 142 S Ct 2111 [2022]), this scheme is unconstitutional. The defendant further argues that Penal Law § 265.03 itself is unconstitutional based on the fact "it embeds an unconstitutional licensing law." (Defense supporting affirmation at 3.) The defendant also argues the Second Amendment should not be a second-class right (contrasted with the First Amendment) and that this court should restore it to a first-class right.

The People argue that the Supreme Court rulings, specifically those in Bruen and District of Columbia v Heller (554 US 570 [2008]), do not prohibit a state from passing pistol permit licensing requirements. The People also argue the defendant does not have standing to challenge the constitutionality of the statute and finally that the defendant would otherwise be ineligible for a pistol permit.

The first issue this court must address is whether the defendant has standing to challenge this statute. 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{**78 Misc 3d at 618} the lack of standing. In People v Williams (76 Misc 3d 925, 929 [Sup Ct, Kings County 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 United States v DeCastro, 682 F3d 160, 164 [2d Cir 2012])." In People v Rodriguez (76 Misc 3d 494, 496-497 [Sup Ct, NY County 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 F3d 160, 164 [2d Cir 2012] ['(T)o establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy' . . . ])."

In oral arguments, the defendant indicated that "[w]e're making a challenge to the entire licensing law of New York State as it being unconstitutional." (Oral argument tr at 3.) It is clear the defendant has no standing to challenge the New York State pistol permit licensing law. As he has neither applied for nor been denied a permit, he has suffered no prejudice and has no interest in this statute. The defendant is, however, indicted and charged with criminal possession of a weapon in the second degree. It may be splitting hairs as the defendant's arguments as to why the criminal possession of a weapon statute is unconstitutional rest solely on the constitutionality of the New York State pistol permit laws. Regardless, the court will address the merits of the constitutional argument.

The New York State pistol permit licensing procedure is outlined in Penal Law § 400.00. This section outlines the requirements and restrictions in obtaining a pistol permit. The requirements changed somewhat substantially following the{**78 Misc 3d at 619} Bruen decision and more specifically, with New York State's legislative response. What has not changed, however, is the ability of states to regulate firearm possession through a permitting process. "The Bruen decision affirms a state's right to impose some restrictions on weapon ownership." (Matter of Kamenshchik v Ryder, 78 Misc 3d 646, 648 [Sup Ct, Nassau County 2023].)

The defendant's arguments as to why the New York criminal possession of a weapon statute is unconstitutional center around the Bruen decision. In Bruen, the United States 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, 597 US at —, 142 S Ct at 2156.) The holding in Bruen is narrow and focused solely on New York's previous "proper-cause" standard. The Court in Bruen began their analysis with,

"In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (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." (Bruen, 597 US at —, 142 S Ct at 2122.)

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. '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, 597 US at —, 142 S Ct at 2128.){**78 Misc 3d at 620}

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 (2010), about restrictions that may be imposed on the possession or carrying of guns." (Bruen, 597 US at —, 142 S Ct at 2157.)

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." (Bruen, 597 US at —, 142 S Ct at 2161.) 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 requirements like those used by the 43 shall-issue States." (Bruen, 597 US at —, 142 S Ct at 2162.)

Finally, in citing McDonald v Chicago (561 US 742 [2010]),

"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." (Bruen, 597 US at —, 142 S Ct at 2162.)

One issue of note is that in the Bruen decision the Court repeatedly pointed out that the petitioners were "law-abiding, {**78 Misc 3d at 621}adult citizens." Additionally, the petitioners in Bruen not only applied for but possessed restricted New York pistol permit licenses (previously, in addition 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. As noted above, in the court's discussion on standing, there is no indication this defendant has ever applied for a pistol permit. Also, this defendant has a prior felony conviction for criminal possession of a loaded firearm in the third degree from 2004. Under Penal Law § 400.00 (1) (c), a requirement to obtain a pistol permit license includes that the applicant "has not been convicted anywhere of a felony or a serious offense or who is not the subject of an outstanding warrant of arrest issued upon the alleged commission of a felony or serious offense." To reiterate the holding in McDonald mentioned above, "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill.' " (McDonald at 786.)

The prohibition against prior felons possessing firearms was also noted in Rodriguez,

"But contrary to defendant's contention, Bruen, which sought to vindicate the rights of 'law-abiding, responsible citizens' who wish to obtain a license in compliance with a fairly administered law based on 'narrow, objective, and definite' criteria, did not hold that the State is powerless to criminalize the unlicensed possession of firearms on city streets . . .

"So, too, here. Like other constitutionally protected rights, the right to bear arms, as the Bruen Court recognized, is 'subject to certain reasonable, well-defined restrictions[,]' including properly administered, evenhanded licensing requirements. Thus, states may constitutionally prohibit the possession of firearms by felons and the mentally ill . . . . In other words, '[l]ike most rights, the right secured by the Second Amendment is not unlimited.' " (Rodriguez at 497-498 [citations omitted].)

The court in Rodriquez went on to state, "Defendant's reading of the Second Amendment, unsupported by Bruen, would turn New York into the Wild West, placing its citizens at the mercy of criminals wielding unlicensed firearms, concealed from public view, in heavily populated areas." (Id. at 498.){**78 Misc 3d at 622}

The defendant also claims that the Second Amendment has become a "second-class amendment." The defendant, in his submission, drew parallels to the First Amendment, claiming,

"Imagine a citizen's right to exercise the freedom of speech being vested in the unlimited discretion of licensing officials. Without question, as the Supreme Court has held, such a law is unconstitutional on its face. As long as different rules apply in the Second Amendment context, the right to keep and bear arms will remain a second-class right." (Defense submission at 3.)

Essentially, the defendant argues there are restrictions on the Second Amendment that do not exist with other amendments. Historically, however, there have been legitimate restrictions on each constitutional amendment. It should be noted that possessing a firearm has unique potential issues due to the potential dangerousness of the protected right if misused. States have a legitimate interest in creating reasonable safeguards and regulations. Even in context of the First Amendment argument raised by the defendant, one cannot simply yell "fire" in a crowded theater. This First Amendment right of free speech is regulated for the safety and well-being of those in the theater. This was also addressed in the Rodriguez case cited above.

"But no constitutional right is absolute. Americans are well acquainted with the truism that one cannot falsely shout fire in a crowded theatre despite the free speech protections of the First Amendment (see Schenck v United States, 249 US 47, 52 [1919]; US Const Amend I). The Free Exercise Clause does not bar states from requiring that students in public schools be immunized against various vaccine-preventable illnesses over religious objection (see Prince v Massachusetts, 321 US 158, 166-167 [1944]; Phillips v City of New York, 775 F3d 538 [2d Cir 2015]; US Const Amend I), or from penalizing the use of hallucinogenic drugs, even though ingested pursuant to religious ceremony (see Employment Div., Dept. of Human Resources of Ore. v Smith, 494 US 872 [1990]; see also Reynolds v United States, 98 US 145 [1878] [rejecting claim that criminal laws against polygamy could not constitutionally be applied to those whose religion commanded the practice]). Freedom of the press does not in all cases forbid a prior restraint on publication{**78 Misc 3d at 623} (see Nebraska Press Assn. v Stuart, 427 US 539, 570 [1976] ['This Court has frequently denied that First Amendment rights are absolute']; US Const Amend I). The right of an accused to confront witnesses does not categorically prohibit a child witness in a child sexual abuse trial from testifying by one-way closed circuit television (see Maryland v Craig, 497 US 836 [1990]; US Const Amend VI). The Fourth Amendment requirement that a warrant be obtained in order to enter a private residence to effect a search or seizure permits exceptions for exigent circumstances (see Payton v New York, 445 US 573 [1980]; US Const Amend IV)." (Rodriguez at 497-498.)

Ultimately, post-Bruen, there has been no court in New York that has held the 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 (597 US at —, 142 S Ct 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 (597 US at —, 142 S Ct at 2122-2123)." (Williams{**78 Misc 3d at 624} at 926-927 [some citations omitted].)

Also, People v Caldwell (76 Misc 3d 997, 1003 [Sup Ct, Queens County 2022]), "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." (Rodriguez at 495.) 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 such weapons beyond the general desire to protect oneself." (Rodriguez at 496.)

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 rulings have no impact on the constitutionality of New York's criminal possession of a weapon Penal Law statutes. This court does not find that the Second Amendment is a second-class right, but rather equal to all other constitutional rights. This constitutional right has no bearing on the legitimacy of the criminal possession of a weapon statute challenged by the defendant.

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.