New York Criminal Lawyer Blog
The criminal defendant was indicted for possession of a weapon as a class D felony on the charge that he had possessed an operable revolver and a quantity of ammunition and that such drug possession was not in his home or place of business. He was allowed to plead guilty to attempted possession of a weapon as a class E felony in satisfaction of the indictment. He was then sentenced to a six-month term and he was incarcerated until when he was released on bail with the consent of the District Attorney.
The principal question presented is whether the firearm here possessed was in the defendant’s place of business within the exception set forth in Penal Law. Subsidiary questions presented are whether the court’s stated policy at the time of sentence to impose a term of incarceration in such cases was improper in the light of his previous statement, at the time of accepting the guilty plea, that he would make no commitment as to sentence prior to reading the probation report; and whether the sentence imposed was excessive.
The facts are not in dispute. The defendant, an employee, was arrested while on his job in the United States Post Office attached to the John F. Kennedy Airport. Special Police Officer alleged that he had been informed that the defendant was carrying a gun. When the officer approached the defendant, he observed a bulge on his left side and removed there from in holster a .38 cal. revolver. The officer arrested the defendant and, upon a search of his person, discovered five rounds of live ammunition which could be used to discharge this firearm. The defendant had no permit for the gun.
Generally speaking, the court does not believe that the place of business exception in the statute should be extended to cover the situation here presented. The possessor of a firearm in such person’s home or place of business is given the benefit of having the possession reduced from a felony to a misdemeanor for the apparent reason that the Legislature concluded the firearm was to be used at such locale in defense of the possessor’s person and property.
In accepting the plea to attempted possession of a weapon as a felony the trial court was made aware of the fact that the defendant’s possession of the weapon and the live ammunition had taken place in the Post Office. If the Post Office was the criminal defendant’s place of business, thus negating the felony element of the statute, it was the court’s duty not to accept the defendant’s plea of guilty to a felony.
The court has been unable to find any New York case on an appellate level which holds that a fixed place of employment is or is not one’s place of business, although three cases at the trial level have held that a taxicab is a taxi driver’s place of business within the meaning of the Penal Law.
Neither side has referred to any out-of-state place of business statutes, but independent research reveals that there are a number of such statutes.
The District Attorney asserts that arguably, since an owner illegally possessing a gun on his business premises is criminally liable for only an A misdemeanor, any employee who he leaves in charge of the premises should come within the purview of the statutory exception. He then argues that because the appellant had no proprietary interest in the post office nor was he in charge of its operation he did not have the personal stake in the security of the post office that the legislators intended when the exception was made.
The construction contended for by the District Attorney is too rigid and narrow. If the term place of business is susceptible of reasonable application in accordance with the common understanding of men, it should be given the meaning that could reasonably be ascribed to it by the average person. Thus, could not a bookkeeper working in an office reasonably believe that to be her place of business; would not a doctor employed by an industrial firm be justified in saying that his office was his place of business; and would not a district attorney have justifiable reason for stating, in answer to an inquiry, that his office was his place of business? Many similar examples might be given to illustrate the point. Since the words used in a penal statute must be given their usual, ordinary and commonly accepted meaning as understood by ordinary people and since to be made criminal the proscribed conduct should be clearly enunciated so that all those who may be affected may gauge their actions accordingly, the words place of business should be construed, at the very least, as including any fixed place of employment. Robbery was an issue.
The judgment of conviction should therefore be modified by reducing it to the misdemeanor of attempted possession of a firearm. The dissent agrees with the majority that the sentence (in view of the defendant’s exemplary probation report) should be reduced to the time served.
It is clear that the defendant at bar was not delegated by his superiors to protect any property of the United States Government. The arresting Special Police Officer was available for security purposes. While not for a moment departing from its holding in a case where any attempt to analogize a taxicab with a United States Post Office must fail. In a taxicab the driver has at least exclusive appropriation and control. This is not so in the Post Office, where the employee (in the defendant’s status) has no authority or delegation to carry a concealed weapon. The defendant’s possession of the gun in the Post Office was not in any way in furtherance of any function or duty being performed by him for the postal service. Further, it appears from the sentence minutes that the criminal defendant, at that time, did not justify why he carried the gun. There is, however, some intimation in the criminal probation report that he carried the gun to protect himself while traveling to and from his place of employment.
The court is not in accord with the liberal construction of the statute proposed by the minority. Such reasoning, pursued to its ultimate conclusion, seemingly would condone the act of countless numbers of employees of large corporations and governmental agencies in carrying illegal, concealed, operable guns at their places of employment, subject only to a charge of a misdemeanor rather than a felony. The foreseeable consequences are foreboding. It is inconceivable that this was the intention of the Penal Law. To the contrary, the statute is designed to limit the use of guns, ever mindful of the fact that concealed weapons arrest present an immediate and real danger to the public.
While the conviction for attempted possession of a weapon as a felony should stand, the interest of justice warrants reducing the sentence to the time already served, in the light of the defendant’s prior unblemished record. Accordingly, the judgment should be modified, as a matter of discretion in the interest of justice, by reducing the sentence to the time served; and, as so modified, the judgment should be affirmed.
The dissenting votes to modify the judgment by reducing the conviction to the misdemeanor of attempted possession of a firearm and reducing the sentence to the time served, and to affirm the judgment.
In this case, the defendant pled guilty to attempted possession of a weapon. As a felony and was sentenced to six months imprisonment. He appeals from the judgment of conviction entered on that plea. The judgment should be modified as hereinafter stated.
The crime of possession of a weapon as a felony–charged in the indictment–requires as a concomitant that such possession not occur in the defendant’s home or place of business; if such possession takes place in the defendant’s home or place of business the gun crime is a misdemeanor and not a felony, unless the defendant has been previously convicted of a gun crime–a situation not here present.
More and more people are trying to secure a weapon that could help them protect them and their loved ones. Because of this, laws that would protect the community from abuse of those who has the permit to carry a weapon should be properly implemented. The Queens County Arrest Attorney together with the Queens County Possession of a Weapon Lawyer from Stephen Bilkis and Associates can help you in court if you get yourself involved in a gun crime related dispute.