Supreme Court, Bronx County, September 24, 2024

The Center for Appellate Litigation (Carola Beeney of counsel) for defendant.

Darcel D. Clark, District Attorney (Emily Aldridge of counsel), for the People.

By notice of motion filed via EDDS (Electronic Document Delivery System) on May 28, 2024, the defendant moves under CPL 440.10 (1) (h) and 440.20 for vacatur and dismissal of the September 15, 2022 judgment of the Supreme Court, Bronx{**85 Misc 3d at 409} County (Lorenzo, J.), convicting him by guilty plea of one count of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and imposing a determinate sentence of 5½ years followed by five years of postrelease supervision. In the alternative, the defendant seeks reduction of the count of conviction from the class C violent felony of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) to the lesser class E nonviolent felony of criminal possession of a firearm under Penal Law § 265.01-b (1). The People opposed by affirmation filed via EDDS on July 31, 2024, the defendant replied by affirmation filed via EDDS on August 21, 2024, and the People submitted a surreply letter via EDDS on August 22, 2024. Upon review of the parties' submissions, the court denies the motion without a hearing.

The defendant's conviction arose out of his arrests, on October 23, 2021, and October 26, 2021, for firearm possession. The allegations involving these two arrests included the following. On October 23, 2021, the defendant's father called 911. When the police arrived at the home, they recovered three firearms, including two loaded pistols. One pistol had a magazine capable of holding 30 rounds of ammunition. Police also observed what appeared to be heroin. Criminal charges were filed, and the defendant was arraigned, and released under supervision. On October 26, 2021, the defendant's father called 911 after the defendant ripped the showerhead from his father's bedroom and urinated on the floor. The defendant's father wanted help relating to his son's mental health. Upon entering, officers uncovered an alleged AR-15 assault rifle in plain view in the defendant's bedroom. The officers obtained a search warrant, pursuant to which they recovered four more firearms, including another AR-15 assault rifle, as well as magazines, ammunition, and apparent fentanyl with a scale. A second complaint was filed.[*2]

The charges from both arrests of the defendant were consolidated into a single 53-count indictment upon which the People proceeded against the defendant in Supreme Court. Included in the indictment were charges of Penal Law § 265.03 (3), class C violent felonies, for possession of an unlicensed loaded firearm after having been previously convicted of any crime. There were two predicate convictions that supported these charges. On April 27, 2002, the defendant was convicted of the unclassified misdemeanor of driving while his ability{**85 Misc 3d at 410} was impaired by drugs under Vehicle and Traffic Law § 1192 (4). On April 30, 2003, the defendant was convicted of the class A misdemeanor of criminal possession of a weapon in the fourth degree under Penal Law § 265.01 (1).

On August 24, 2022, the defendant resolved the indictment by pleading guilty to one count of criminal possession of a weapon in the second degree under Penal Law § 265.03 (3) concerning his possession, on October 23, 2021, of a loaded 9 millimeter Taurus pistol. At no time prior to his plea and sentence did the defendant object to the constitutionality of the charges filed against him and specifically the count of Penal Law § 265.03 (3) that he stands convicted of.

The defendant raises several issues both procedural and substantive. For the reasons stated below, the court denies the motion as procedurally defective, and substantively without merit.

The defendant relies on CPL 440.10 (1) (h) and 440.20 as his basis for seeking two forms of relief. First, the defendant requests that, should the court grant his motion, the court enter an order of dismissal. In the alternative, the defendant asks that his conviction under Penal Law § 265.03 (3) be reduced to Penal Law § 265.01-b (1) and a resentencing ordered. Procedurally, the defendant does not meet the threshold for relief under either provision.

CPL 440.20 is a vehicle post-conviction to set aside a sentence. This provision does not provide a basis to vacate a conviction, reduce a plea, and order a new sentence. Here, the defendant requests that the court vacate his conviction to Penal Law § 265.03 (3), a class C violent felony, reduce his plea to a lesser count of Penal Law § 265.01-b (1), a class E nonviolent felony, and then sentence him accordingly. Under Penal Law § 265.01-b (1), the defendant would face a maximum sentence of 1⅓ to 4 years in state prison. Accordingly, any sentence pursuant to this section would be a reduction from the negotiated sentence of 5½ years followed by five years postrelease supervision. The defense is not asking for the sentence imposed to be set aside, but for the count of conviction to be reduced, and following that modification, a new sentence imposed. As Mr. Shilman attacks both his conviction and sentence, CPL 440.20 does not apply as a basis for relief.

CPL 440.10 (1) permits a post-conviction motion seeking vacatur of the "judgment," that is, both the conviction and {**85 Misc 3d at 411}sentence together (see CPL 1.20 [15]). A court must deny a motion under this provision where sufficient facts appear in the record to raise the issue on appeal (CPL 440.10 [2] [b]). The defendant did not raise the Second Amendment claim asserted on this motion prior to the entry of his guilty plea. As a result, the argument inarguably was unpreserved for appeal (see CPL 470.05 [2]; People v Cabrera, 41 NY3d 35, 51 [2023]; People v Bailey, 32 NY3d 70, 78 [2018]). The People contend that there are no new or additional facts that would be necessary for an appellate court to review his contentions. Specifically, that the reasons the defendant sets forth in his affidavit for possessing a gun bear no relevance to whether his conviction for unlicensed possession raises a Second Amendment claim. Thus, the People contend CPL 440.10 (2) (b) poses a procedural bar.[*3]

The defendant argues on this motion that his contentions are a "mixed claim" that must be raised via post-verdict motion, and which could not have been properly developed during the underlying proceedings (see People v Maxwell, 89 AD3d 1108, 1109 [2d Dept 2011]). A "mixed claim" is one that requires facts appearing on the record, as well as those appearing off the record (Maxwell, 89 AD3d at 1109). Since such a claim turns on additional facts outside the record, its litigation requires that the record be expanded with a post-conviction motion (id.). The defendant argues that he satisfies these criteria, because his post-conviction motion includes as an exhibit an affidavit by him setting out his rationales for possessing a gun. In essence, the defendant argues that this necessary information was not on the record pre-adjudication and must be developed as part of his post-conviction motion.

Here, the court finds that there were sufficient facts on the record for the defendant to have raised his claim before pleading guilty (see People v Crum, 184 AD3d 454, 455 [1st Dept 2020], lv denied 35 NY3d 1065 [2020]). The defendant's legal arguments do not turn on the resolution of any new or additional facts. As the People maintain, the defendant could have raised a challenge based on the Supreme Court ruling in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]), which had been decided prior to the entry of his guilty plea on August 24, 2022. The defendant challenges his conviction and sentence for unlicensed possession of a firearm, and the constitutionality of Penal Law § 265.03 (3). This is a legal issue that could have been raised preplea, and the defendant's reasons for having a gun bear no relevance.{**85 Misc 3d at 412}

Yet, even absent this procedural bar, the court finds no substantive basis for granting the defendant's motion. The principal argument set forth by the defendant is that considering the recent Supreme Court ruling in Bruen (597 US 1 [2022]) his conviction under Penal Law § 265.03 (3) is unconstitutional under the Second Amendment. In Bruen, the United States Supreme Court abrogated the means-end scrutiny test applied by multiple, lower federal courts to Second Amendment challenges (597 US at 19). In its place, the Supreme Court articulated a two-step framework based on the amendment's plain text and the United States' historical tradition of firearm regulation (id. at 24). At the first step, a court must determine whether the Second Amendment's "plain text covers an individual's conduct," and if it does, the conduct is presumptively protected by the United States Constitution (id.). If that first step is satisfied, then the government must "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation" (id.).

The Supreme Court cautioned that the "analogical reasoning" required by its test necessitated "only that the government identify a well-established and representative historical analogue, not a historical twin" (597 US at 30 [emphasis omitted]). Building on that guidance, in United States v Rahimi, the Supreme Court emphasized that "the Second Amendment permits more than just those regulations identical to ones that could be found in 1791" (602 US 680, 691-692 [2024]). The Supreme Court noted that "if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations," because "[w]hy and how the regulation burdens the right are central to [the Second Amendment] inquiry" (id. at 692).

Prior to the Supreme Court's decisions in Bruen and Rahimi, the New York State Court of Appeals had considered and rejected arguments nearly identical to those set forth by the defendant (see People v Hughes, 22 NY3d 44, 51-52 [2013]). Concededly, the Court of Appeals reached its holding by application of the means-end scrutiny test nullified by Bruen (Hughes, 22 [*4]NY3d at 51). Yet, abrogation of the means-end scrutiny test does not call into question every conclusion reached about the Second Amendment pre-Bruen (see e.g. United States v Canada, 103 F4th 257, 258 [4th Cir 2024] ["No {**85 Misc 3d at 413}matter which analytical path we choose, they all lead to the same destination"], cert granted, judgment vacated 604 US —, 145 S Ct 432 [2024]; Oregon Firearms Fedn., Inc. v Brown, 644 F Supp 3d 782, 797 [D Or 2022] ["In discussing the ways in which Bruen altered the analysis for Second Amendment challenges, it is equally important to recognize what Bruen did not do"], appeal dismissed 2022 WL 18956023, 2022 US App LEXIS 34277 [9th Cir, Dec. 12, 2022, No. 22-36011]).

In Hughes, the Court held: "It is beyond dispute that preventing the criminal use of firearms is an important government objective; and keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end" (22 NY3d at 52). This analysis closely follows the Supreme Court's guidance in Rahimi, that the "appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition" (602 US 680, 692). Penal Law § 265.03 (3) seeks to deter those who have already shown an unwillingness to follow the law from possessing an unlicensed, loaded firearm. Licensure falls within the United States' historical tradition of firearm regulation. The Supreme Court has repeatedly acknowledged, from Heller, to McDonald, and again, recently, in Bruen, that the Second Amendment permits regulation and limits on firearm access and licensure (see Bruen, 597 US at 30 [Second Amendment reasoning imposes neither a "regulatory straightjacket nor a regulatory blank check"]; McDonald v Chicago, 561 US 742, 786 [2010] [right to bear arms is not the right to "keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"] [internal quotation marks omitted]; District of Columbia v Heller, 554 US 570, 626 [2008] ["the right secured by the Second Amendment is not unlimited"]). States' power to regulate licensure, subject to constitutional limitation, is a recognized part of the United States' tradition of firearm regulation. State criminal laws that punish and deter unlicensed firearm possession are an integral piece of enforcing individual state licensing regimes. Nothing in Bruen suggests that a person may disregard licensing laws and then successfully invoke the Second Amendment to attack the severity of the resulting punishment.

In arguing that Bruen requires a different outcome here than in Hughes, the defendant points to federal cases where courts have questioned the constitutionality of the federal felon in possession laws contained in 18 USC § 922 (g) (1) (see e.g. {**85 Misc 3d at 414}Range v Attorney Gen. U.S. of Am., 69 F4th 96 [3d Cir 2023], cert granted, judgment vacated sub nom. Garland v Range, 602 US —, 144 S Ct 2706 [2024]; United States v Martin, 718 F Supp 3d 899, 901 [SD Ill 2024]). This comparison misses the mark. While 18 USC § 922 (g) (1) disarms felons, Penal Law § 265.03 (3) falls within a continuum of punishment for possession of an unlicensed firearm. According to the legislative history, Penal Law § 265.03 (3) was "intended to increase the penalty for criminal possession of a loaded firearm" where a person possessed a loaded firearm "in his home or place of business and has previously been convicted of a crime or he possesses an assault weapon" (Senate Introducer's Mem in Support, Bill Jacket, L 2006, ch 745 at 3; see also People v Jones, 22 NY3d 53, 59 [2013]). Penal Law § 265.03 (3) resembles many other New York State crimes that create greater penalties where people with prior convictions engage in unlawful conduct (see e.g. Penal Law §§ 120.50 [2] [Stalking in the third degree]; 130.53 [Persistent sexual abuse]; 130.95 [3] [Predatory sexual assault]; 165.10 [1] [Auto stripping in the second degree]; 190.83 [2] [Unlawful possession of personal identification information [*5]in the first degree]; 215.52 [2], [3] [Aggravated criminal contempt]; 240.30 [5] [Aggravated harassment]; 120.13 [Menacing in the first degree]; Vehicle and Traffic Law §§ 1193 [1] [c] [Operating a motor vehicle while under the influence of alcohol or drugs]; 511 [2] [i] [Operating a motor vehicle while license suspended]). The statute before the court operates as an enhanced sentencing law, not as a New York State counterpart to the federal felon in possession law. 18 USC § 922 (g) (1) disarms felons as a class. Any person possessing an unlicensed firearm in New York State is subject to prosecution.

As an additional basis, defendant argues that his rights under the Fourteenth Amendment have been violated since the Second Amendment equally protects individuals who possess weapons in their home regardless of whether the person has a prior criminal conviction. This argument misstates the conduct criminalized by this statute. Penal Law § 265.03 (3) criminalizes unlicensed possession of a loaded firearm by people with prior convictions. The defendant's guilt turns on his conviction for possession of an unlicensed loaded firearm, not the situs of his possession. Further, similar attempts to reframe a Second Amendment challenge as burdening a different constitutional right under the Fourteenth Amendment have{**85 Misc 3d at 415} been rejected by federal courts (see United States v Sitladeen, 64 F4th 978, 988-989 [8th Cir 2023], reh denied 2023 WL 3330794, 2023 US App LEXIS 11494 [8th Cir, May 10, 2023, No: 22-1010]; Pena v Lindley, 898 F3d 969, 986 [9th Cir 2018], cert denied 590 US —, 141 S Ct 108 [2020]; United States v Carey, 602 F3d 738, 741 n 2 [6th Cir 2010], cert denied 562 US 895 [2010]).

For all these reasons, the court denies the defendant's motion without a hearing (see CPL 440.30 [4] [a]).