The opinion of the court was delivered by: Dena E. Douglas, J.
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 printed Official Reports.
Defendant, Albi Abdullah, was arraigned on August 1, 2008 on a charge of criminal possession of a weapon in the fourth degree pursuant to Penal Law 265.01(1). Defendant moves for dismissal of the charge on the ground that the PL 265.01 is unconstitutional and that such charge constitutes a violation of defendant's Second Amendment right to keep and bear arms in his home for self protection, pursuant to the US Constitution., Amendments II and XIV; and pursuant to the holding of the US Supreme Court in District of Columbia v Heller, 128 Sup Ct 2783 (2008). Defendant further supports his claim of unconstitutionality on the alleged arbitrary and capricious nature of the City's gun licensing process as managed by the New York City Police Department.
The People base their response on the ground that the Supreme Court has repeatedly held that the language of the Second Amendment places limits upon the power of Congress, not upon the powers of the States. (See US v Cruikshank, 92 US 542 ; Presser v Illinois, 116 US 252 ) The People argue that Heller, by its own terms, is neither applicable to nor binding upon the States, and that it cannot be interpreted to mean that the Second Amendment bars a state's reasonable regulation of gun possession. The court has reviewed the defendant's moving papers, the People's response, relevant statutes and case law, and for the reasons discussed hereafter, denies the defendant's motion.
Pursuant to the complaint, defendant's motion, and the response filed by the People, Police Officer Chiwen Cen was brought to the marital abode in response to a call that defendant was present in the home in violation of a temporary order of protection that had been issued ex parte on the previous day. When defendant was asked if he had any weapons he stated, in substance, that there was a weapon in the top cabinet in the kitchen. The Officer recovered an unloaded .25 caliber semi-automatic pistol from inside a kitchen cabinet. Defendant was arrested for violation of Penal Law § 265.01(1).
The Supreme Court did specifically hold in Heller that the District of Columbia's ban on the possession of handguns in the home violates the Second Amendment (128 Sup Ct at 2821-22) but the Court also stated that the right to keep and bear arms as secured by the Second Amendment is not unlimited (supra, at 2816) and that the Second Amendment is neither applicable to nor binding upon the States (Heller, supra, 2812-13). The Court then chose not to address the validity of the District of Columbia's licensing requirement (supra, at 2819) and hypothesized that "Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home."(supra, at 2822)
Because New York does not have a complete ban on the possession of handguns in the home and because the District of Columbia is a federal enclave and not a State, Heller is distinguishable and its holding does not invalidate New York's gun possession laws or regulations. The Second Amendment has been recently held not to apply to the States and is not incorporated into the Fourteenth Amendment. (See Bach v Pataki, 408 F 3d 75, 86 [2nd Cir, 2005]; Parker v District of Columbia, 478 F 3d 370,391, n. 13 [DC Circuit, 2007]) Therefore, in New York, possession of a firearm remains a criminal act, pursuant to Penal Law Article 265, unless one holds a license to so possess, pursuant to Penal Law § 265.20(3) and Article 400. People v Zabar Lynch, 2008 NY Misc LEXIS 4587; 240 NYLJ 15 (July 15, 2008).
Defendant's motion to dismiss on the ground that Penal Law 265.01 violates the Second Amendment of the United States Constitution is denied.
It is worth noting that based on the file presently before the court the complaint is unconverted, as the operability of the firearm recovered is not documented therein. (People v Longshore, 86 NY2d 851; People v Connelly, 54 AD3d 348 [2d Dept, 2008].)
This opinion constitutes the decision and order of the court.
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