People v Melville

[*1] People v Melville 2008 NY Slip Op 50461(U) [19 Misc 3d 1101(A)] Decided on March 13, 2008 Supreme Court, New York County Farber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 13, 2008
Supreme Court, New York County

The People of the State of New York,

against

Antoine Melville, Defendant.



4410/07



Appearances

Gary Villanueva, Esq

401 Broadway

Suite 1503

New York, New York 10013

Leila Kermani, Esq.

Assistant District Attorney

New York County District Attorney's Office

One Hogan Place

New York, New York 10013

Susan J. Miller, Esq.

Court Attorney

Judge Thomas Farber

111 Centre Street

New York, NY 10013

(646) 386-3892

Fax: (212) 401- 9265

Thomas A. Farber, J.

Defendant Antoine Melville is charged with Criminal Possession of a Controlled Substance in the Second Degree, Penal Law §220.18(1), Criminal Possession of a Controlled Substance in the Third Degree, Penal Law §220.16(1), Criminal Possession of a Weapon in the Second Degree, Penal Law §§265.03(1)(b) & (3) (three counts each) and related offenses. This opinion explains why I dismissed the three counts of the indictment charging defendant with [*2]Criminal Possession of a Weapon in the Second Degree, Penal Law §265.03(3).

According to the evidence introduced in the Grand Jury, a search warrant was executed at what is undisputedly defendant's home and sole residence. Inside the apartment, the police recovered approximately eight ounces of cocaine, a small quantity of marijuana, a semi-automatic rifle, two revolvers, and drug paraphernalia. There was no evidence that defendant sold drugs out of the apartment.

The People charged three counts of Criminal Possession of a Weapon in the Second Degree under Section 265.03(3), making it a crime to possess any loaded firearm unless "such possession takes place in such person's home or place of business." It was thus the People's obligation to plead and prove as an element of P.L. 265.03(3), that the possession of the loaded weapon did not take place in defendant's home or place of business. People v. Rodriguez, 68 NY2d 674 (1986).

As the term "home" is commonly understood, the uncontradicted evidence in the Grand Jury indicated that the possession took place in defendant's home. That is, the apartment was defendant's permanent residence and the contraband was recovered from the livingroom and a bedroom. The Grand Jury was, however, given the following definition of "home":

The term "home," requires you to make a factual determination

as to whether the defendant actually lived at the location; and, if he

did, as to whether he was entitled to privacy there as one would be in one's

home. In this regard, a home' does not include a place where there is

substantial public access. Furthermore, the home' exception is intended to

apply where a firearm is possessed for the purpose of protecting one's

person or property at one's home. It does not apply if the defendant

possessed the weapon in order to accomplish some illicit purpose, such as

the sale of narcotics, nor does it apply if the weapon was possessed for some

other purpose other than to protect his home. . . .

Thus, the People instructed the Grand Jury that as a matter of law the home exception did not apply if defendant possessed the weapon to accomplish an illicit purpose, such as the sale of narcotics. This instruction has no corollary in the New York Criminal Jury Instructions (CJI 2d [NY]) and I can find no support for it in the case law.

The People admit that there are no cases that would directly support this construction of the "home exception" but argue that the "home or place of business"exception has been narrowly construed and that the "trend in the case law" supports the view that the home exception is not applicable to a defendant who is using his home for an "illicit" purpose.

The "home or place of business exception" that reduces the penalty for possession of a loaded weapon in one's home or place of business to a misdemeanor is a legislatively created exception. People v. Powell, 54 NY2d 524, 525 (1981). Article 265 of the Penal Law does not contain a definition of "home." The People are indeed correct that the exception has been "construed narrowly" for public policy reasons. People v. Buckmire, 237 AD2d 151 (1st Dept 1997), appeal denied 90 NY2d 902 . This "narrow" construction has been applied, however, only in specific areas consistent with the legislative intent.

Thus, with respect to the "place of business" part of the exception, the courts have held [*3]that the exception does not apply where someone possesses a weapon unrelated to the performance of his or her job. See People v. Buckmire, 237 AD2d 151, supra (exception not applicable to stockbroker who possessed weapon for personal reasons and left it in elevator); People v. Fearon, 58 AD2d 1041 (4th Dept 1977 ), cert. denied 434 U.S. 1036 (exception not applied to employee who used weapon at work to settle a personal grudge); People v. Francis, 45 AD2d 431, 434 (2d Dept 1974), affd. 38 NY2d 150 (1975) (exception not applicable to postal worker who possessed a weapon unrelated to his workplace duties). Courts have also held that the "place of business" exception was intended to protect legitimate businesses where it would be "reasonable to believe that a gun is necessary to protect persons and property." People v. Rodon, 109 Misc 2d 394, 401 (Sup. Ct. NY Cty 1981) (place of business exception not applicable to gun possessed in social club); accord People v. Cross, 174 AD2d 313 (1st Dept. 1991); People v. Yaghi, 199 AD2d 829, 830(3d Dept 1993) (exception not applicable to pizza delivery truck because a motor vehicle is not a "place of business"); People v. Khudadzde, 156 AD2d 384 (2d Dept 1989), appeal denied 75 NY2d 814 (taxi and dispatch office not defendant's place of business).

With respect to the "home" exception, however, the courts have focused primarily, if not exclusively, on whether the weapon is possessed in defendant's actual permanent residence that is, where he would have an expectation and right of privacy. Thus, courts have refused to extend the protection to apartments or homes where defendant did not actually reside. See People v. Marin, 164 AD2d 783 (1st Dept 1990), appeal denied 76 NY2d 988 (exception does not apply to apartment where there was no evidence defendant actually resided in the apartment); People v. Brown, 115 AD2d 791 (3d Dept 1985), appeal denied 67 NY2d 880 (exception does not apply to a motel room since that was not defendant's permanent residence).

While courts have not limited the exception to traditional "homes" or apartments, the courts have construed the exception not to apply to weapons found in common areas of certain semi-public residences where there is no recognized expectation of privacy. In People v. Powell, 54 NY2d at 529-531, for example, the Court of Appeals held that the home exception did not apply to a gun found in the lobby of a men's shelter. In People v. Bargemen, 92 Misc 2d 173 (Sup Ct. NY Co. 1977) (cited with approval in Powell), the trial court held that the exception would apply to the common areas of a single room occupancy hotel. The court noted that common areas of an apartment occupied by multiple residents would clearly be covered but that common areas of large multiple dwellings, like public hallways, would not be covered by the exception because there was "relatively uncontrolled" access by the public. Finding that the common areas of an SRO are more akin to an apartment occupied by multiple roomers, the court held that the exception should apply. Id. at 173; see also People v. Dennis, 263 AD2d 618, 619 (3d Dept 1999), lv denied 99 NY2d 822 (exception does not apply to common stairway of apartment building used by visitors and tenants); People v. Oakman, 215 AD2d 596, 597 (2d Dept 1995), appeal denied 86 NY2d 799 (home exception did not apply to gun found in basement stairway of building with mixed commercial and residential use).

Similarly, even with respect to traditional homes, weapons found outside of the residential living areas have been held to be without the scope of the exception. See e.g. People v. Maniscalco, 198 AD2d 378, 379 (2d Dept 1993), appeal denied 82 NY2d 927 (home exception did not apply to gun found in car parked in unfenced driveway accessible to public); [*4]People v. Tolbert, 253 AD2d 832, 833 (2d Dept 1998), lv denied 92 NY2d 1039 (home exception did not apply to gun found in car parked in fenced-in driveway).

I have found no cases, and the People have cited none, to suggest that the living quarters of someone's actual residence is not a "home" because illicit activity is conducted there.[FN1] A right of privacy is a right of privacy, and it exists in one's home whether one is conducting illegal activity in one's home or not.[FN2]

The home or place of business exception has been contained in the Penal Law since 1965, when the legislature re-codified New York's Penal Law, making possession of a loaded firearm outside of one's home a felony. Since that time, various amendments to Penal Law §§265.02 & 265.03 have been enacted, and each time the legislature has kept the home or place of business exception intact.

Notably, in 2007, a bill was proposed that would amend the Penal Law to prevent individuals who conduct illegal activity within their homes from taking advantage of the home exception. According to this bill, the home or place of business exception would be applicable unless "the possession takes place while or immediately after a felony or misdemeanor has been committed and the possession reasonably relates to the support or protection of unlawful activity." [Proposed bill to amend PL §265.02(4), A5043, 2007, in committee] This amendment was not enacted.

Moreover, in 2006, when the legislature raised possession of a loaded firearm from Criminal Possession of a Weapon in Third Degree (a Class D felony) to Criminal Possession of a Weapon in the Second Degree (a Class C felony), the legislature initially eliminated the provision of Criminal Possession of a Weapon in the Second Degree making it a crime to possess a loaded firearm with intent to use it unlawfully. After several commentators pointed out that this would make it a misdemeanor to possess a weapon in one's home with intent to use it unlawfully, the legislature re-enacted the former provision. (See L. 2006, c.742 §1, eff Nov 1, 2006; L. 2006 c.745 §1, eff December 15, 2006; Donnino, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 39, PL 265, 2008 Pocket Part at 51).[FN3] If the People's [*5]interpretation of the home or place of business exception were accurate, it is arguable that re-enactment of this section was unnecessary, since every possession of a weapon to "further an illicit activity" could be considered possession with intent to use unlawfully.[FN4]

Based on the forgoing, I find that the instructions given to the Grand Jury as quoted in this decision were erroneous and impaired the integrity of the Grand Jury proceedings. The counts charging criminal possession of a weapon in the second degree, P.L. 265.03(3), counts six, seven and eight, are dismissed. CPL §210.35(5).

This opinion constitutes the decision and order of the Court.

Dated: New York, New York

March 13, 2008

__________________________________

J.S.C. Footnotes

Footnote 1: The People cite one unreported case where the trial judge upheld the use of the charge given in this case. There, however, the charge was not challenged by defense counsel.

Footnote 2:While the People suggest that defendant may have been selling drugs out of his apartment, the grand jury heard no evidence that drugs were sold from defendant's home.

Footnote 3: For example, a memorandum from the Office of the Attorney General supported the legislative change making the penalty for possession of a loaded weapon outside of one's home or place of business a "C" felony, but also pointed out that an unintended flaw in the bill was that "an individual who possesses a loaded illegal weapon in his or her home or business with intent to commit a crime will be guilty of only a class A misdemeanor . . . rather than, as now, a class C felony." The impact of the legislation would be that it would "significantly reduce the penalties that can be imposed on perpetrators of domestic violence who intend to use loaded, illegal firearms to further harm those they victimize." Mem of Off of Atty Gen, Bill Jacket, L 2006, ch 742.

Footnote 4:Indeed, the People obtained an indictment in this case for three counts of Criminal Possession of a Weapon with intent to use unlawfully, with no evidence other than that outlined here. And the People did not charge the presumption contained in Penal Law §265.15.