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U.S. v. SHAW

May 10, 2003

UNITED STATES OF AMERICA AGAINST CHRISTOPHER SHAW, DEFENDANT.


The opinion of the court was delivered by: Arthur D. Spatt, United States District Court Judge

MEMORANDUM OF DECISION AND ORDER

This case involves a felon-in-possession. Presently before the Court is a motion by Christopher Shaw ("Shaw" or the "defendant") to suppress a gun that is the subject of the indictment in this case or, in the alternative, to dismiss the indictment.

I. BACKGROUND

In 1997, the defendant was sentenced to 2-6 years incarceration after being convicted in the state court for Burglary in the Third Degree. On September 23, 1999, the defendant was released on parole. Prior to his release, Shaw signed a "certificate of release," dated August 4, 1999, which listed the terms and conditions of his release. The certificate listed as conditions, among other things, that "(4) I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property . . . (9) I will not own, possess, or purchase any shotgun, rifle or firearm of any type without the written permission of my Parole Officer. . . ."

In October of 2000, while Shaw was on parole, Detective Christopher Nealis of the Suffolk County Police Department received a tip regarding the defendant. The informant advised Detective Nealis that the defendant, who had been providing information about narcotics activities to the detective, was himself distributing crack cocaine in Coram. The informant also stated that the defendant was carrying a handgun while he was engaging in narcotics transactions. Furthermore, the informant described the defendant and told Detective Nealis the defendant's street name The Government contends that, based on his prior dealings with Shaw, Detective Nealis recognized that the informant was referring to Shaw and that the street name was Shaw's street name.

Thereafter, Detective Nealis notified Officer Kann of the New York State Division of Parole of this information. Based on the information relayed to him, Parole Officer Kann requested the assistance of Suffolk County detectives in a visit to the defendant's residence.

On October 12, 2000 at approximately 10:00 a.m., Parole Officer Kann, Detective Nealis, and three other Suffolk County Police detectives went to the defendant's residence. According to the Government, the officer and the detectives knocked on the door to the defendant's apartment, which was located in the basement of the premises. The Government further claims that the defendant let the parole officer and the detectives into his residence.

The Government contends that the parole officer and the detectives observed the defendant and two others present in the living room. Upon seeing the detectives, one of the individuals attempted to shove a plastic bag in his pants. That plastic bag was recovered and was found to contain narcotics.

Detective Nealis then walked into the laundry room adjacent to the living room. The Government contends that the laundry room, which is across the hall from the main entrance to the defendant's apartment, was unlocked and the defendant had full access to this room. The Government claims that on an exposed beam in the laundry room, Detective Nealis saw and seized a loaded .32 caliber Davis Industries handgun. The Government claims that the defendant voluntarily told Detective Nealis that the handgun was his.

Having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, the defendant was indicted in this Court on one count of violating 18 U.S.C. § 922(g)(1) for possessing a Davis .32 caliber semi-automatic pistol. The defendant moves to suppress the weapon or that the Court should hold a hearing on the issue of suppression. In the alternative, the defendant moves to dismiss the indictment.

A. Motion to Dismiss the Indictment

The defendant requests that the Court dismiss the indictment on the ground that this prosecution is an improvident exercise of federal jurisdiction because the weapon was inoperable and thus could not serve as the basis for a New York state prosecution. The defendant is correct in stating that under New York law a weapon must be operable to establish criminal possession of a handgun. See People v. Longshore, 86 N.Y.2d 851, 852, 657 N.E.2d 496, 497 (1995) (holding that "to establish a violation of Penal Law § 265.01(4), the People must establish that the defendant possessed an operable rifle or shotgun after having previously been convicted of a felony"). However, the defendant fails to cite to any authority establishing that the inoperability of a firearm precludes federal prosecution of the defendant pursuant to Section 922(g)(1).

Section 922(g)(1) prohibits a convicted felon from possessing a firearm and ...


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