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People v. Jones

Court of Appeals of New York

November 19, 2013

The PEOPLE of the State of New York, Respondent,
v.
Harold JONES, Appellant.

Page 54

[Copyrighted Material Omitted]

Page 55

[977 N.Y.S.2d 740] Robert S. Dean, Center for Appellate Litigation, New York City (David J. Klem of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (David E. Stromes and Patrick J. Hynes of counsel), for respondent.

Page 56

OPINION

SMITH, J.

[999 N.E.2d 1185] Defendant was charged with criminal possession of a weapon in the second degree for possessing a loaded firearm. The alleged possession occurred in his home, but defendant had previously been convicted of a crime. He claims that under Penal Law § 265.03(3) he is entitled, despite his prior conviction, to rely on the so-called " home or business" exception in the definition of second degree weapon possession. We reject that argument and hold that defendant's indictment for second degree possession was proper.

I

Defendant was charged in two indictments with a variety of crimes, but only a single count is now before us. That count was based on evidence before the grand jury that a loaded gun was found in a bathroom; the bathroom, it is now conceded, was part of defendant's home. The indictment alleges simply that defendant committed criminal possession of a weapon in the second degree in violation of Penal Law § 265.03(3) in that he " possessed a loaded firearm." With the indictment, the People filed a special information, alleging that defendant had previously been convicted of criminal possession of a controlled substance in the first degree.

Supreme Court, concluding that possession of the weapon in defendant's home did not constitute second degree possession, reduced the charge to third degree possession. On the People's appeal, the Appellate Division reversed and reinstated the [999 N.E.2d 1186] [977 N.Y.S.2d 741] second degree charge ( People v. Jones, 103 A.D.3d 411, 959 N.Y.S.2d 73 [1st Dept.2013] ). A Judge of this Court granted leave to appeal (21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ), and we now affirm.

II

Before reaching the merits of the appeal, we must consider a jurisdictional issue. Defendant says that the People's appeal to the Appellate Division was untimely, and that therefore the Appellate Division could not consider it. He says that the appeal was not taken " within [30] days after service upon [the People] of a copy" of Supreme Court's order reducing the second degree count to third degree possession (CPL 460.10[1][a] ).

Defendant's theory is that the 30-day time to appeal began running when, according to defendant's brief, Supreme Court " provided copies" of its ...


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