People v Jones

People v Jones 2013 NY Slip Op 00690 Decided on February 5, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 5, 2013
Friedman, J.P., DeGrasse, Richter, Abdus-Salaam, Feinman, JJ. 9156- 9157-
5388/09 3779/10 9157A

[*1]The People of the State of New York, Appellant,

v

Harold Jones, Defendant-Respondent.




Cyrus R. Vance, Jr., District Attorney, New York (David P.
Stromes of counsel), for appellant.
Robert S. Dean, Center for Appellate Litigation, New York
(David J. Klem of counsel), for respondent.

Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about March 2, 2011, which, inter alia, reduced a count charging criminal possession of a weapon in the second degree to criminal possession of a weapon in the third degree, unanimously reversed, on the law, and the charge of second degree weapon possession is reinstated. Appeal from order, same court and Justice, entered on or about June 15, 2011, which effectively granted reargument and, upon reargument, adhered to its March 2, 2011 order, unanimously dismissed as academic. Appeal from order, same court and Justice, entered on or about March 10, 2011, unanimously dismissed as nonappealable.

The court erred in reducing the charge to third-degree weapon possession on the basis of the "home or place of business" exception (Penal Law § 265.03[3]). The indictment properly charged defendant with second-degree possession, since Penal Law § 265.03(3), by referencing Penal Law § 265.02(1), criminalizes the possession of a loaded firearm, even in the home, where a defendant has previously been convicted of any crime (see People v Hughes, 83 AD3d 960 [2d [*2]Dept 2011], lv granted 19 NY3d 961 [2012]). The People properly charged the prior conviction by way of a special information (see CPL 200.60), and defendant's arguments to the contrary are without merit.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 5, 2013

CLERK