Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nuccio v. Duve

United States District Court, N.D. New York

March 16, 2015

STEPHEN NUCCIO, Plaintiff,
v.
NICOLE DUVE, in her official capacity as District Attorney of the County of Saint Lawrence, New York, Defendant.

JAMES M. MALONEY, ESQ., JAMES M. MALONEY, ATTORNEY AT LAW, Port Washington, New York, Attorney for Plaintiff.

CAROLYN E. WEISSBACH, ESQ., CAROLYN E. WEISSBACH, Houghton, Michigan, Attorney for Plaintiff.

ZACHARY M. MATTISON, ESQ., HANCOCK ESTABROOK, LLP, Syracuse, New York, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff commenced this action on December 17, 2013, alleging that the provisions of N.Y. Penal Law §§ 265.00-02 that criminalize the possession of chuka sticks (or "nunchaku") are unconstitutional to the extent that they punish possession of nunchaku within one's home. See Dkt. No. 1. Presently before the Court is Defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(3) or, in the alternative, to stay the proceedings pending the final resolution of a similar lawsuit currently pending in the United States District Court for the Eastern District of New York. See Dkt. No. 15. Plaintiff opposes the motions. See Dkt. No. 20.

II. BACKGROUND[1]

A. N.Y. Penal Law §§ 265.00-02

N.Y. Penal Law § 265.01 provides in relevant part that "[a] person is guilty of criminal possession of a weapon in the fourth degree when... [h]e or she possesses any... chuka stick." N.Y. Penal Law § 265.01(1). Criminal possession of a weapon in the fourth degree is classified as a class A misdemeanor. Id. § 265.01. N.Y. Penal Law § 265.00 defines "chuka stick" as

any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. These devices are also known as nunchakus and centrifugal force sticks.

Id. § 265.00(14).[2]

N.Y. Penal Law § 265.02 provides, as relevant here, that "[a] person is guilty of criminal possession of a weapon in the third degree when...[s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime." Id. § 265.02(1). Criminal possession of a weapon in the three degree is classified as a class D felony. Id. § 265.02.

B. The Northern District of New York Action

On May 8, 2012, New York State police officers arrived at Plaintiff's home in St. Lawrence County, New York, pursuant to a bench warrant on a criminal contempt allegation unrelated to the present action. Dkt. No. 1 at ¶ 7. While inside Plaintiff's home, the officers observed five pairs of nunchaku on a display shelf outside of Plaintiff's bedroom, which the officers seized and secured into evidence. Id. at ¶¶ 8-9. On May 10, 2012, Plaintiff was charged with criminal possession of a weapon in the fourth degree in violation of N.Y. Penal Law § 265.01 based on Plaintiff's possession of the nunchaku seized from his home. Id. at ¶ 10. On June 25, 2013, a jury found Plaintiff guilty of misdemeanor criminal possession of a weapon in the fourth degree. Id. at ¶ 14. As a result of this conviction, Plaintiff qualifies as a person who "has been previously convicted of any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.