Supreme Court, Bronx County, September 11, 2023

The Bronx Defenders (Angeline Andersen of counsel) for defendant.

Darcel D. Clark, District Attorney (Jacob Heric of counsel), for the People.

Defendant is charged with violating Penal Law § 265.01-b and related lesser offenses. The charges involve allegations that, on October 30, 2022, defendant's mother called the police{**81 Misc 3d at 211} for assistance based on an allegation that the defendant had threatened to slash her tires. Upon the police arriving at the home, defendant's mother consented to their entering and while there the police recovered a loaded firearm in defendant's bedroom. Subsequently, defendant was charged with criminal possession of a firearm. Defendant now moves for dismissal of the indictment filed against him as having been based upon an unconstitutional charge pursuant to the Second Amendment right to bear arms. Having considered the arguments of counsel, the People's affirmation in opposition and the relevant substantive and procedural laws, the court denies defendant's motion.

Defendant's argument arises from the recent United States Supreme Court holding in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]). To adequately address defendant's arguments it is necessary to review the Supreme Court's holding and the New York State legislative response to the ruling. The Supreme Court's ruling in Bruen found New York's long-standing licensing scheme violative of the Second Amendment for unduly infringing upon the right to bear arms for self-defense. Specifically, the Supreme Court held that the discretionary "proper cause" provision of Penal Law § 400.00 improperly encroached upon the Second Amendment as it required that a person seeking a license to carry and conceal a firearm demonstrate "a special need for self-protection distinguishable from that of the general community" (Matter of Klenosky v New York City Police Dept., 75 AD2d 793, 793 [1st Dept 1980], affd 53 NY2d 685 [1981], and abrogated by Bruen, 597 US at 70-71). To remedy the problems addressed in Bruen, the New York State Legislature revised Penal Law § 400.00 and enacted the Concealed Carry Improvement Act (the CCIA) (L 2022, ch 371).[*2]

The sponsor memorandum to the CCIA specifically acknowledges that the United States Supreme Court "deemed New York State's existing law unconstitutional because the law afforded too much discretion to the State and its licensing officers," and that, as a result, "the State must amend the State's laws on concealed carry permits and take other steps to address the consequences of the Supreme Court decision" (see Senate Introducer's Mem in Support of 2022 NY Senate Bill S51001, enacted as L 2022, ch 371, available at https://www.nysenate.gov/legislation/bills/2021/S51001). Under the CCIA, "good moral character" is now a defined term: "having {**81 Misc 3d at 212}the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others" (Penal Law § 400.00 [1] [b]). The CCIA also requires a licensing officer to issue a written decision explaining why a license has been denied or revoked and has created an appeals' process for challenging such a denial or revocation (Penal Law § 400.00 [4-a]). The changes brought about by the CCIA reflect the New York State Legislature's intention to regulate firearm possession in a manner consistent with Bruen's guidance.

It is the newly revised licensing scheme that defendant now challenges. Specifically, he focuses on the CCIA's continued requirement that an applicant for a firearm license demonstrate "good moral character" which the CCIA has now defined as "having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others" (Penal Law § 400.00 [1] [b]). Defendant does not address whether he ever applied for a firearms license in New York either before or after passage of the CCIA. Invoking Bruen, defendant argues that New York State's recently revised firearm licensing scheme is unconstitutional and that the penal law criminal indictment charging unlawful weapon possession should therefore fall as well. For the reasons set forth below, the motion to dismiss is denied.

As a court exercising criminal jurisdiction, this court must first address whether defendant's motion conforms with the Criminal Procedure Law. Under CPL 210.20 (1), a defendant may move to dismiss an indictment, or its counts, on the basis that "(a) [s]uch indictment or count is defective, within the meaning of section 210.25" or "(h) [t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged." Section 210.25 (3) of the Criminal Procedure Law permits a court to find an indictment or one of its counts defective where the "statute defining the offense charged is unconstitutional or otherwise invalid," and CPL 210.20 (1) (h) has also been recognized as a vehicle by which a defendant may seek dismissal on constitutional grounds (see e.g. Peter Preiser, Prac Commentaries, McKinney's Cons Laws of NY, CPL 210.20; People v Ayers, 109 Misc 2d 870, 870 [Nassau County Ct 1981]).

[1] Like any motion to dismiss under CPL 210.20 (1), defendant's motion must satisfy the requirements of CPL 210.45.{**81 Misc 3d at 213} Under CPL 210.45 (1), when a "motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons." The requisite sworn allegations may be based upon personal knowledge of the affiant, or may be made upon information and belief, provided that the sources of such information and the grounds for such belief are provided (see CPL 210.45 [1]). The defendant may also submit documentary evidence supporting or tending to support the asserted allegations (see id.). Here, defendant submits no facts of an evidentiary notion. Rather, in support of the motion to dismiss, defense counsel submits a conclusory affirmation that "[t]he constitution imposes no requirement that defendant have previously applied for or been denied a license in order to challenge the constitutionality of the statute in the [*3]context of a pending criminal prosecution."

Compliance with the Criminal Procedure Law ensures that a movant establishes standing for a claim. Defendant's argument does not adequately address New York's procedural standing requirements. New York's Court of Appeals has held in the context of the Fourth Amendment that defendant cannot clear procedural obstacles by invoking the constitution (see People v Ibarguen, 37 NY3d 1107, 1108-1109 [2021], cert denied 596 US —, 142 S Ct 2650 [2022]; People v Duval, 36 NY3d 384, 390-392 [2021]; see also CPL 710.60 [1]). The same reasoning applies herein. Where a defendant remains mute as to standing, the court cannot discern whether his rights have been violated. Standing is a means of redressing an actual harm not a hypothetical one and both federal and New York State laws recognize its importance as a condition for stating a claim (see United States v Decastro, 682 F3d 160, 164 [2d Cir 2012]; Jackson-Bey v Hanslmaier, 115 F3d 1091, 1095 [2d Cir 1997]; Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 50 [2019], quoting Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]). In the context of firearm regulation, federal courts have specifically acknowledged that, to challenge a firearm licensing or permitting regulation, the proponent of the challenge must have first submitted to the complained of regulation (see Decastro, 682 F3d at 164; Hightower v City of Boston, 693 F3d 61, 70-71 [1st Cir 2012]; Kendrick v Bruck, 586 F Supp 3d 300, 308 [D NJ 2022]; see also Westfall v Miller, 77 F3d 868, 872-873 [5th Cir 1996] [challenge premised on, inter alia, 10th and 14th Amendment grounds]).{**81 Misc 3d at 214}

Defendant's arguments seem to suggest that New York's licensing scheme remains so broad and difficult to comply with that there is no need to demonstrate standing. In support of this argument, defendant cites to two cases: the Supreme Court case of Shuttlesworth v Birmingham (394 US 147 [1969]) and the District of Columbia Court of Appeals' decision in Plummer v United States (983 A2d 323 [DC 2009]).

In Shuttlesworth v Birmingham (394 US 147 [1969]), a minister successfully challenged a Birmingham, Alabama parade permitting ordinance on First Amendment grounds after he held a peaceful civil rights march and was convicted and sentenced. The Supreme Court stated in Shuttlesworth that "our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license" (394 US at 151). The First Amendment principle stated in Shuttlesworth derives from the Supreme Court's concerns with censorship. As the Supreme Court later stated in City of Lakewood v Plain Dealer Publishing Co.,

"Recognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license" (486 US 750, 755-756 [1988]).

To apply Shuttlesworth indiscriminately to defendant's case misconstrues the Supreme Court's holding and its progeny. Where a regulation could allow a government official absolute power to censor speech with absolute discretion, the concern arises that individuals will be intimidated from the exercise of free expression under the First Amendment (Lakewood, 486 US at 757). Thus, even absent an attempt at compliance, a litigant's rights can be aggrieved (id.).

Here, in the context of the Second Amendment, this reasoning does not apply. Federal courts have explicitly acknowledged that the censorship concerns unique to the First Amendment counsel against wholesale application of its principles to the Second Amendment (see Hightower, 693 F3d at 80-81; Bolton v Bryant, 71 F Supp 3d 802, 817-818 [ND Ill 2014]). The Supreme{**81 Misc 3d at 215} Court has repeatedly clarified that firearm possession may be regulated in accord with the Second Amendment (see Bruen, 597 US at 29-31; District of Columbia v Heller, 554 US 570, 626-627 [2008]).

The court also finds inapplicable defendant's other argument based on the District of Columbia Court of Appeals' decision in Plummer. Plummer concerned a blanket prohibition where registration of a handgun for ordinary self-defense purposes in the home was prohibited (see Plummer, 983 A2d at 340-341; see also Heller, 554 US at 626-627). The CCIA is not an "outright ban" as was the case in Plummer (983 A2d at 340). Here, defendant had the ability to seek a license and the court is left to surmise whether he did or did not do so.

Having not met the procedural requirements of CPL 210.45 (1), and provided no persuasive substantive argument for failing to do so, the court finds that defendant has not established standing to challenge his prosecution on the grounds presented. However, even if this court were to reach the merits of defendant's Second Amendment challenge, the court finds defendant's arguments unavailing.

[2] Defendant's argument entails a two-fold analysis that would require this court to find both the CCIA and the applicable penal law unconstitutional. Statutes enjoy a strong presumption of constitutionality and should be construed to avoid constitutional invalidity (see United States v Davis, 588 US —, — n 6, 139 S Ct 2319, 2332 n 6 [2019] ["courts should, if possible, interpret ambiguous statutes to avoid rendering them unconstitutional"]; Flemming v Nestor, 363 US 603, 617 [1960] ["Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it"]). This principle has been reinforced by the New York Court of Appeals: "[i]t is well settled that acts of the Legislature are entitled to a strong presumption of constitutionality" (American Economy Ins. Co. v State of New York, 30 NY3d 136, 149 [2017] [internal quotation marks omitted and alteration in original]). Accordingly, "parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt . . . [and] courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional" (Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 NY3d 586, 593 [2013] {**81 Misc 3d at 216}[internal quotation marks omitted], cert denied 571 US 1071 [2013]).

In terms of reviewing the CCIA, the record provides scant support for the court to rule on the statute's constitutionality. This court is not adjudicating a civil action where there has been discovery exchanged on New York State's licensing process post-CCIA or where the court could hold a trial dedicated to the issue of the constitutionality of New York State's new licensing regime. Rather, defendant asks this court to rule on the CCIA's constitutionality relying solely on conclusory allegations pleaded in the context of a criminal motion to dismiss, and counsel's memorandum of law.

To overcome these obstacles, defendant relies on two provisional remedies that have been granted by a Federal District Court judge. In Antonyuk v Hochul, a District Court issued a temporary restraining order of the CCIA (see Antonyuk v Hochul, 635 F Supp 3d 111 [ND NY 2022]), and later, a preliminary injunction (Antonyuk v Hochul, 639 F Supp 3d 232 [ND NY, Nov. 7, 2022]). Notably, the Second Circuit granted a stay of the preliminary injunction pending appeal (see Antonyuk v Hochul, 2022 WL 18228317, *1, 2022 US App LEXIS 36240, *2-3 [2d Cir, Dec. 7, 2022, No. 22-2908 (L), 22-2972 (Con)], citing In re World Trade Ctr. Disaster Site Litig., 503 [*4]F3d 167, 170 [2d Cir 2007]). In granting the stay, the Second Circuit necessarily concluded that the appellants made a preliminary showing that their appeal from the order granting the preliminary injunction possessed merit (see World Trade Ctr. Disaster Site Litig., 503 F3d at 170). Further, the Supreme Court declined to vacate the Second Circuit's stay (see Antonyuk v Nigrelli, 598 US —, 143 S Ct 481 [2023]). Defendant's argument vastly overstates the significance of the provisional remedies issued by the District Court and its application to defendant's motion to dismiss. The orders issued in Antonyuk do not concern the ultimate merits of the CCIA (see Litton Sys., Inc. v Sundstrand Corp., 750 F2d 952, 961 [Fed Cir 1984]). For this court to find the CCIA unconstitutional beyond a reasonable doubt as required by the Court of Appeals, the court would need significantly more persuasive authority (Overstock.com, Inc., 20 NY3d at 593).

As to Penal Law § 265.01-b, the court concludes as well that defendant has not overcome the presumption of constitutionality attached to this statute (Davis, 588 US at — n 6, 139 S Ct at 2332 n 6; Flemming, 363 US at 617; American Economy Ins. {**81 Misc 3d at 217}Co., 30 NY3d at 149; Overstock.com, Inc., 20 NY3d at 593). Defendant mischaracterizes Penal Law § 265.01-b as criminalizing all firearm possession. In fact, the statute criminalizes only unlawful, unlicensed possession. By making it a class E felony to unlawfully possess a firearm, Penal Law § 265.01-b deters the unlicensed possession of firearms in New York State and ensures, instead, that guns are possessed only by "law-abiding citizens" (Bruen, 597 US at 29-31; Heller, 554 US at 635). Here, the police arrived at the home of defendant's mother after she expressed fear over defendant damaging her car's tires, and, upon her consent, entered the apartment and ultimately recovered the firearm that defendant is charged with unlawfully possessing. For the court to overreach and construe a penal law provision as unconstitutional based upon a speculative claim of the CCIA's unconstitutionality would be an extraordinary measure.

Accordingly, defendant's motion, in addition to the standing-related defects already identified, provides no basis for the court to find the CCIA or Penal Law § 265.01-b unconstitutional.

For all these reasons, the court denies the motion to dismiss.