People v Frazzini

[*1] People v Frazzini 2023 NY Slip Op 50410(U) Decided on May 3, 2023 Supreme Court, Erie County Boller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2023
Supreme Court, Erie County

The People of the State of New York

against

Rebecca Frazzini, Defendant.



Indictment No. 70227-23/001

John J. Flynn, Esq.
District Attorney, Erie County
Brendan W. Fitzgerald, A.D.A.
for the People

Louis Mussari, Esq.,
for defendants

M. William Boller, J.

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 Criminal Procedure Law §210.25(1)(a); specifically, 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 April 20, 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 April 28, 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 Association, Inc. v Bruen, 142 S.Ct 2111 (2022), this scheme is unconstitutional. The defendant further argues that the licensing scheme dispossesses individuals convicted of misdemeanor drug possession. Finally, the defendant argues that the licensing scheme in New York relegates the Second Amendment into a second class right.

The People argue that the Supreme Court ruling, specifically those in Bruen and District of Columbia v Heller, 128 S.Ct 2783, 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 as she did not apply 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 the lack of standing. In People v Williams, 76 Misc 3d 925 (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 DeCastro, 682 F.3d 160 [2d Cir. 2012])." In People v Rodriguez, 76 Misc 3d 494 (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 F.3d 160, 164 [2d Cir. 2012] ["(T)o establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy."

This Court has also addressed the issue of standing in both People v Caleb Brundige, 2023 NY Slip Op. 23028 and People v Felix Williams, 2023 NY Slip Op. 50158(U). In both cases, this Court has held an individual who has not applied for, or been denied, a pistol permit does not have standing to challenge the New York State pistol permit licensing statute. As the defendant has neither applied for nor been denied a permit, she has suffered no prejudice and has no interest in this statue.

The defendant is indicted and charged with Criminal Possession of a Weapon in the Second Degree. Based on the fact the defendant is directly affected by the Criminal Possession of a Weapon statute [FN1] , the Court will consider the merits of the defendant's challenge as it relates to the constitutionality of the Criminal Possession of a Weapon statute.

Based on the Court's decision on standing, one preliminary argument raised by the [*2]defendant that needs to be addressed is the issue of the defendant's ineligibility to obtain a pistol permit due to a prior conviction for Criminal Possession of a Controlled Substance in the Seventh Degree. Penal Law §400.00 outlines the New York State pistol permit licensing scheme. Specifically, this section outlines the requirements and restrictions in obtaining a pistol permit. Penal Law §400.00(1) outlines who is eligible to obtain a pistol permit. In P.L. §400.00(1)(c), an individual who is convicted anywhere of a felony or a serious offense is ineligible to obtain a pistol permit. The term "serious offense" is defined in P.L. §265.00(17). Criminal Possession of a Controlled Substance in the Seventh Degree is one of the enumerated offenses under this statute. The defendant is correct in that her prior conviction for this serious offense would currently prohibit her from obtaining a pistol permit as she is ineligible.[FN2]

In this case, however, the defendant has not applied for or been denied a pistol permit. That there is some nebulous potential future harm does not provide the defendant standing to challenge the pistol permit licensing scheme based on her prior conviction for Criminal Possession of a Controlled Substance in the Seventh Degree. If the defendant wished to specifically challenge the constitutionality of the "serious offense" prohibition to obtaining a pistol permit license whether in general or as it relates to specific enumerated offenses, she would need to apply for and be denied a pistol permit on those grounds. That would show actual harm and provide standing to challenge the New York State pistol permit licensing laws, specifically P.L. §400.00. Upon a denial of a pistol permit, the applicant can file an Article 78 proceeding challenging the decision. The constitutionality of the "serious offense" prohibition would be a logical point of appeal if applicable in that particular case.

One issue of note is that in the Bruen decision the Court repeatedly pointed out that the petitioners were, "law-abiding, adult citizens." Additionally, the petitioners in Bruen not only applied for, but possessed restricted New York pistol permit licenses [FN3] . 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 conviction for a "serious offense."

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, [*3]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."

The Court in Rodriguez 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." While this Court acknowledges the distinction between a felony conviction and a conviction for a "serious offense," the current licensing provision treats them equally. Additionally, there are dozens of non-violent felonies of which having a conviction for would prohibit an individual from obtaining a firearm.

Having disposed of the issue of the prior conviction, this Court turns to the defendant's challenge as to the constitutionality of the Criminal Possession of a Weapon statute. The law concerning firearms changed significantly due to the Supreme Court's decision in Bruen; and even more so due to 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." Kamenshchik v Ryder, 2023 NY Slip Op. 23026.

The defendant has made a number of further arguments as to why the statute is unconstitutional. Two of the primary arguments are the statute is unconstitutional as New York is a "may issue" state as opposed to a "shall issue" state. During oral arguments, the defendant argued "What we are saying is that there's got to be a limit on the discretion and there's got to be a clear objective criteria and a shall issue position not a may issue position." The defendant also argues that the licensing scheme relegates the Second Amendment to a second class right. The Court will address these arguments.

The defendant's arguments as to why the New York Criminal Possession of a Weapon statute is unconstitutional primarily centers around the Bruen decision in conjunction with Heller and McDonald. In Bruen, the United State 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, 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, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), and McDonald v. Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (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."

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, 128 S. Ct. 2783. "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, 2128. 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, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), about restrictions that may be imposed on the possession or carrying of guns." Bruen, 2157. In 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." 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." Finally, in citing McDonald v City of Chicago, Illinois, 561 U.S. 742,

"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."

The defendant, in her motion, argues that, "In Bruen, the Supreme Court struck down...New York's "proper cause" requirement for obtaining a concealed carry firearms license, because it was a may issue provision. Logic dictates that if the entire licensing law is may issue, it is unconstitutional on its face." (Defense Motion, Page 3, Paragraph 15). Ultimately, post-Bruen, there has been no Court in New York that has held the New York State pistol permitting scheme to be unconstitutional, despite being a "may issue" state. 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 (Id. 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 [*4]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 (Id. at 2122)."

Also, People v Caldwell, 76 Misc 3d 997, "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." 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." Also, People v McWilliams 214 AD3d 1328, "Defendant's attempts to invoke exceptions to the preservation rule are unavailing inasmuch as the United States Supreme Court's intervening decision in Bruen neither held any criminal statute unconstitutional...nor called into doubt New York's criminal prohibitions on unlicensed possession of firearms."

During oral arguments, the defendant argued, "What we are saying is that there's got to be a limit on the discretion and there's got to be a clear objective criteria and a shall issue position not a may issue position." In her motion, the defendant cites Antonyuk v Hochul, 2022 WL 16744700 [NDNY 2022] stating, "America lacks a historical tradition of firearm-licensing schemes conferring open-ended discretion on licensing officers." It should be noted that the grounds for which the defendant argues she would automatically be denied a pistol permit, that she was convicted for a "serious offense," is statutory and not discretionary. As discussed previously, Criminal Possession of a Controlled Substance in the Seventh Degree is an enumerated offense in P.L. §265.00(17). A conviction for this specific offense bars the defendant from obtaining a pistol permit. There is no discretion from the licensing officer. The criteria is clear and outlined in the statute.

The defendant also claims that the Second Amendment has become a "second class amendment." The defendant, in her 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, 4). 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 [*5]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 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 [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 U.S. 158, 166-167, 64 S. Ct. 438, 88 L. Ed. 645 [1944]; Phillips v. City of New York, 775 F.3d 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 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 [1990]; see also Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 [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 (see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 570, 96 S. Ct. 2791, 49 L. Ed. 2d 683 [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 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 [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 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 [1980]; US Const Amend IV)."

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 ruling have no impact on the constitutionality of New York's Criminal Possession of a Weapon Penal Law statues. This Court does not find that the Second Amendment is a second class right, but rather equal to all other Constitutional rights. The defendant's inability to obtain a pistol permit due to her prior conviction for a "serious offense" is statutory and not discretionary. Ultimately, the defendant does not have standing to challenge New York State's pistol permit licensing scheme; and her challenge to the Criminal Possession of a Weapon statute is insufficient to declare said statute unconstitutional.

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.

HONORABLE M. WILLIAM BOLLER
ACTING SUPREME COURT JUSTICE
DATED: May 3, 2023
BUFFALO, NEW YORK Footnotes

Footnote 1:The defendant faces a mandatory minimum 3 ½ years and a maximum of 15 years incarceration plus post release supervision if convicted of Criminal Possession of a Weapon, a class "C" violent felony.

Footnote 2:. It should be noted that there are potential avenues for a pistol permit applicant to become eligible to apply for and obtain a pistol permit. Sealing, under Criminal Procedure Law §160.59, allows an individual to have certain prior conviction (including certain felonies and other offenses which would qualify as serious offenses sealed. This would allow the individual to apply for and obtain a pistol permit.

Footnote 3:Previously, in additional to "concealed carry," New York had restricted pistol permits for "target-hunting" and "business protection." These restricted licenses changed post-Bruen and the New York legislative response.