Michael A. Fiechter, for appellant.
Yael V. Levy, for respondent The People.
Nikki Kowalski, for intervenor-respondent New York State Attorney General.
Defendant was convicted of a class C felony and sentenced to three and one-half years in prison for possessing a loaded weapon in his home. He does not dispute that his conduct is punishable as a crime, but says that punishing it as a class C felony violates his Second Amendment right to keep and bear arms. We hold that this right has not been violated. I
Defendant's ex-girlfriend Erica lived in an apartment in Hempstead, Long Island. Though their romantic relationship had ended, defendant visited her and stayed at her apartment frequently — so frequently that the trial court, which tried the case without a jury, found that the People had failed to prove that Erica's apartment was not defendant's home. On the day before the event that is now at issue, defendant was at Erica's apartment, heard shooting outside, and decided to bring a gun with him for protection the following day.
On that day, defendant arrived at Erica's apartment with a loaded handgun, for which he had no permit. He chatted with members of Erica's family, then stepped outside — apparently still, under the findings of the trial court, in the curtilage of his home. There he encountered two men, one of whom was Quentin Roseborough. After an argument, defendant drew the gun and shot Roseborough dead.
Defendant was indicted on one count of murder and three counts of criminal possession of a weapon. He raised a justification defense to the murder charge, relying on his own written statement to the police and testimony before the grand jury, in which he said that he shot Roseborough — known to him by the nickname "Maniac Guns" — after Roseborough pulled a gun on him. Eyewitnesses corroborated significant details in defendant's account, and the trial judge believed it. The court acquitted defendant of murder, of manslaughter as a lesser included offense, and of possession of a weapon with intent to use it unlawfully. The court convicted him, however, of criminal possession of a weapon in the second degree (possession of a loaded firearm), a class C felony, and of criminal possession of a weapon in the third degree (possession of a firearm by one previously convicted of a crime), a class D felony.
Defendant had a previous conviction for a misdemeanor, resisting arrest, which was essential to both of his weapon convictions. As we explain in more detail below, the prior misdemeanor barred defendant from defeating the second degree weapon possession charge on the ground that the possession took place in his home (see Penal Law § 265.03 ); and previous conviction of a crime is an element of third degree weapon possession (see Penal Law § 265.02 ). If he had not previously been convicted of any crime, defendant would have been found guilty in this case only of a class A misdemeanor, criminal possession of a weapon in the fourth degree (possession of a firearm) (Penal Law § 265.01 ).
Defendant moved in the trial court, pursuant to CPL 330.30, to set aside his conviction for second degree weapon possession. The Court denied the motion and sentenced defendant to three and one-half years of imprisonment on the second degree count and one year on the third degree count, to run concurrently. The Appellate Division affirmed the judgment of conviction and sentence as to both counts, rejecting defendant's argument that his Second Amendment rights had been violated (People v Hughes, 83 A.D.3d 960 [2d Dept 2011]). A Judge of this Court granted leave to appeal (19 N.Y.3d 961 ), and we now affirm.
Defendant's only significant argument on appeal is that his convictions of a class C and a class D felony infringed his Second Amendment right to keep and bear arms. The People assert that we may not reach this argument because it is not preserved. As to defendant's conviction for third degree weapon possession (the class D felony), the People are right. Defendant never challenged the third degree count on constitutional grounds at Supreme Court. But as to defendant's second degree (class C felony) conviction, we conclude that, as the Appellate Division held, the preservation was adequate under the circumstances of this case.
Defendant did not move before or during trial to dismiss the second degree weapon possession charge on constitutional grounds. He did, however, make such a motion after trial, but before sentence, pursuant to CPL 330.30. He argued — essentially as he argues here — that to convert a weapon possession crime to a class C felony on the basis of a prior misdemeanor conviction is an infringement of his right to keep and bear arms.
The People argued in Supreme Court this issue was raised too late. They had a point. CPL 255.10  [a] defines a motion to dismiss or reduce an indictment as a "pre-trial motion, " and CPL 255.20 (1) requires such motions to be made "within forty-five days of arraignment and before commencement of trial." The trial court might well have been within its discretion if it had refused to consider defendant's CPL 330.30 motion. However, the People, though complaining of the motion's tardiness, did not suggest that they had been prejudiced by the delay. They now argue that, had defendant's argument been raised ...