People v Ferguson
Annotate this CaseDecided on October 24, 2008
Criminal Court of the City of New York, Queens County
The People of the State of New York
against
William Ferguson, Defendant.
2008QN036911
Charles S. Lopresto, J.
Defendant William Ferguson moves in an omnibus motion for the following relief: (1) A Bill Of
Particulars; (2) Discovery; (3) Suppression of Statement Evidence; (4) Dismissal in the Interests
of Justice; (5) A Declaration that PL § 265.01[1] as Applied to Defendant, is
Unconstitutional; (6) A Reservation of Rights pursuant to CPL § 255.30(3). The People
have responded to the motion. Defendant's motion is decided as follows:
Defendant William Ferguson is charged with Criminal Possession of a Weapon in
the Fourth Degree (PL § 265.01[1]) and Possession of a Knife or Instrument which has a
Blade Length of Four Inches or More (Administrative Code of the City of NY § 10-133[b]),
under the following circumstances:
Deponent [Police Officer Nicholas Ciancarelli] states he is informed by American Airlines Ticket Agent Georgia Chrysafu, that at the above mentioned date, time and place of occurrence, the defendant William J. Ferguson, declared he was in possession of a firearm. Deponent further states he performed a physical search of defendant's bag and he recovered an unloaded Sturm Ruger GP100 .357 Magnum revolver, Serial Number 175-31088 from a gun case located inside said bag. Deponent further states he also recovered a dagger with a blade in excess of four inches from defendant's left boot.
Deponent further states that defendant has been in the City of New York for four days and is
not licensed to possess said firearm in the City of New York.
BILL OF PARTICULARS AND DISCOVERY
The People are directed to comply with the motion for a Bill of
Particulars and Discovery as required by CPL §§ 200.95 and 240.20, to the extent not
already provided. The People are reminded of their continuing Brady obligations.
(Youngblood v West Virginia, 547 US 867, 869 [2006]; Brady v Maryland, 373
US 83 [1963].)
SUPPRESSION OF STATEMENT EVIDENCE[*2]
Defendant moves for suppression
of statement evidence. (CPL § 710.30[1][a].) The People oppose the motion. Defendant's
motion to suppress statement evidence is granted to the extent that a Huntley hearing is
ordered. (People v Huntley, 15 NY2d 72 [1965].)
DISMISSAL IN FURTHERANCE OF JUSTICE
A court may dismiss a misdemeanor complaint in furtherance of justice, pursuant to CPL §170.40(1), "when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant . . . would constitute or result in injustice." A dismissal in the interests of justice involves a sensitive balance between the individual and the State. (People v Clayton, 41 AD2d 204 [2d Dept 1973].) The "judicial discretion" to dismiss in furtherance of justice should be "exercised sparingly" and only in the rare case where there is a "compelling factor" which clearly demonstrates that continued prosecution would be an injustice. (People v M. R., 43 AD3d 1188 [2d Dept 2007]; People v Sherman, 35 AD3d 568 [2d Dept 2006].)
A motion to dismiss in the interest of justice should not be used as a substitute for a trial or when the motion merely raises a trial defense. (People v Rahmen, 302 AD2d 408 [2d Dept 2003]; People v Lagnese, 236 AD2d 629 [2d Dept 1997]; People v Prunty, 101 Misc 2d 163 [Crim Ct New York County 1979].) Further, a weakness in the People's case is not a sufficient basis to dismiss in the interests of justice. (Id.)
Upon the failure of a defendant to make a prima facie showing of a right to dismissal in the interests of justice, the court may summarily deny the motion without a hearing. (CPL §§ 170.45 and 210.45; People v Thomas, 108 AD2d 884 [2d Dept 1985]; People v Schlessel, 104 AD2d 501 [2d Dept 1984].)The statute sets forth ten factors to be considered when determining a motion, pursuant to CPL § 170.40, as follows:
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
( c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of dismissal upon the safety and welfare of the community;
(h) the impact of dismissal upon the confidence of the public in the criminal justice system;
(I) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would have no useful purpose. [*3]
The court need not recite an analysis of each of the factors in reaching it's determination. (People v Gragert, 1 Misc 3d 646 [Crim Ct New York County 2003]; People v Curtis, 2 Misc 3d 1003(A) [Crim Ct New York County 2003].) Rather, the court must consider individually and collectively each of the factors listed in CPL §170.40 and must, where dismissal is granted, state the reasons for the record. (People v Berrus, 1 NY3d 535 [2003].)
Defendant avers that several of the statute's factors weigh in his favor. The People argue that the information is sufficient on its face and that the arrest was therefore valid.
Defendant states that he is twenty-six, has attended college and resides in Los Angeles, California with his girlfriend. Defendant avers that he is licensed by the state of California to possess the .357 magnum revolver that is the subject of the instant criminal complaint, that he possesses concealed firearm permits for the States of Utah and Florida, and that he has completed a training course in the use and operation of firearms. According to defendant, his arrest occurred while attempting to return to California after a vacation in New York and Virginia. Defendant asserts that prior to his departure from California, he contact the airline to find out the proper procedure for carrying a firearm on an airplane and was told that the firearm had to be checked as baggage and had to be carried unloaded in a hard, locked, sealed case. Defendant states that he complied with these procedures. Notably, defendant has not submitted proof of his California hand gun license with the motion.
Defendant explains that on the date of this incident, while he was attempting to obtain his boarding pass, he informed the ticket agent that he was carrying an unloaded firearm, as he had been advised to do by airline personnel, and he was then arrested for possession of the weapon. It is defendant's argument that after a number of plea discussions, the People refuse to offer the defendant a plea to anything other than a criminal charge.
The fact that a defendant has no prior criminal record or an exemplary background is insufficient to justify dismissal in the interests of justice. (People v Kelley, 141 AD2d 764 [2d Dept 1988]; People v Varela, 106 AD2d 339 [1st Dept 1984]; People v Andrew, 78 AD2d 683 [2d Dept 1980].) Further, that defendant is licensed to carry a weapon in three states, but visited two states in which he is not licensed, does not factor in favor of dismissal. Moreover, the seriousness of having a firearm in an airport in a state in which defendant is not licensed to carry it, strongly suggests that the interests of the public are best served by the continued prosecution of defendant. It is noted that defendant is also charged with possessing a dagger with a blade more than four inches long, which is alleged to have been found in his boot
After consideration of defendant's arguments and evaluating them against each factor set forth in CPL § 170.40, this court concludes that defendant has failed to meet his burden of making a prima facie showing that dismissal of these charges would serve the interests of justice.
Accordingly, defendant's motion to dismiss the information in the interest of justice is
denied.
[*4]DISMISSAL FOR UNCONSTITUTIONALITY
Defendant argues that his entitled to dismissal of the criminal weapons possession charge on the ground that the application of PL § 265.01[1] to defendant is unreasonable, and as such, violates his constitutional right to keep and bear arms. It is defendant's contention that as he is a resident of California, as he possesses a license to carry the firearm in that state and two others, as he has taken a course on the use of firearms, and as the gun was unloaded while he was in New York, defendant's constitutional right to bear arms, i.e. his individual right to carry, for self protection, a hand gun, has been violated. The People oppose the motion.
In District of Columbia v Heller, a case upon which defendant relies, the United States Supreme Court determined that "the Second Amendment conferred an individual right to keep and bear arms," and that an individual can use a firearm for the traditionally lawful means of self-defense within the home. (128 S Ct 2783, 2816 [2008].) In its decision, the Supreme Court struck down a local government ordinance totally banning hand gun possession, even in one's home. The Court described the ordinance thus: "[f]ew laws in the history of our nation have come close to the severe restriction of the District's handgun ban." (Id at 2818.) The decision, however, reiterated that restrictions on weapons possession may be imposed by a government, including prohibitions imposed against carrying firearms in "sensitive places." (Id at 2816-17.) The Court added that "[w]e identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." (Id at 2817 n. 26.)
In light of the above, District of Columbia v Heller, is distinguishable from the case at bar for several reasons. Firstly, at the time of his arrest, defendant was not in his home, but was in an airport. Secondly, the requirement that handguns be licensed in the State of New York is not tantamount to a total ban and, therefore, is not a "severe restriction" as was the case in Heller. Lastly, the Court identified certain presumptively lawful regulatory measures which would survive a constitutional challenge including the carrying of firearms in "sensitive places." Licensing is a an acceptable regulatory measure and an airport falls within the scope of a "sensitive place."
Accordingly, defendant's motion to dismiss the charge as unconstitutional as applied to him,
is denied.
RESERVATION OF RIGHTS
Defendant's motion to reserve the right to make further motions is granted on the consent of the People to the extent permitted by CPL § 255.30(3).
This constitutes the decision and order of the court.
Dated:October 24, 2008
Kew Gardens, New York
Charles S. LoprestoJudge of the Criminal Court
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