The defendant is charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]) and other charges.

The main issues before the court are whether or not the officers had probable cause to arrest and search the defendant, and whether or not the Federal case of United States v Homer (- F Supp 3d -, 2024 U.S. Dist. LEXIS 19794* [ED NY 2024], mot denied - F Supp3d -, 2024 U.S. Dist. LEXIS 64739 [ED NY 2024]) (Homer) should be applied to the facts of this case.

On May 15, 2024, a Dunaway/Mapp hearing was held. The People called Detective Brian Festo as the only witness. The witness and his testimony were credible.

The defendant's motion to suppress is denied.

On April 26, 2023, Detective Brian Festo received information from a confidential [*2]informant that the defendant was carrying a firearm.^[FN1] Festo was assigned to the Staten Island Gang Unit and was familiar with the defendant from investigations into gang activities on Staten Island. He believed that the defendant was a member of a Stapleton gang called "The Fives". He knew that the defendant was approximately eighteen years old, and that, based upon computer checks, and the defendant's age, the defendant did not have a license to possess or carry a firearm. Under New York law a person is not eligible for a license to possess or carry a firearm until he or she is twenty-one years old.

At approximately 5:30 p.m. on April 26, Festo and his partner Detective Jan Folvarsky were in an unmarked automobile at the corner of Broad and Gordon Streets when he observed the defendant and some other young males walking up Broad Street. Festo observed the defendant and his group go into a deli located on the adjacent corner of Broad and Gordon Streets. He and Folvarsky then ran into the deli. Festo encountered the defendant in front of the check-out area and frisked him. He felt what he believed to be a firearm under the defendant's outer garment in the waist area. He attempted to disarm the defendant but the defendant tried to flee and then resisted and struggled with the detectives. Eventually the defendant was brought to the ground but his hands were underneath him in the area of the firearm. The defendant continued to struggle while on the ground. Members of the defendant's group surrounded the officers, actively and physically trying to remove property from the defendant's person while the officers were struggling with him on the ground. After the struggle the defendant was handcuffed and the firearm and a fanny pack were removed from his person. Other police officers arrived to assist the detectives by the time the defendant was being walked out of the deli. The defendant tried to give his wallet to his friends by throwing it up into the air as he left the deli, but it was recovered by the police. A cell phone, which the defendant later acknowledged belonged to him, was also obtained from his person. The interactions between the defendant and the officers were recorded on a surveillance camera and entered into evidence as People's Exhibit 1.

Since probable cause to arrest is present when ". . . information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed" (People v McRay, 51 NY2d 594, 602 [1980]; People v Luccioni, 120 AD2d 617, 617 [2d Dept. 1986]), there was probable cause to arrest the defendant based upon the fact that the Detective Festo had received information from a confidential informant that the defendant possessed a firearm. In this regard, the defendant's contention that "information provided to Detective Festo via a confidential informant alone is insufficient to support an arrest" is incorrect.

"Where information comes from a paid or confidential informant who works for or with the police, the information must meet both prongs of the Aguillar-Spinelli test (Aguillar v Texas, 378 U.S. 108 [1964]; Spinelli v United States, 393 U.S. 410 [1969]). Thus, the prosecution must [*3]establish that: (1) the informant is reliable, i.e., that he is trustworthy and speaks the truth; and (2) that the informant has some basis for the knowledge he/she transmits. Each requirement is analytically independent and each must be satisfied" (Barry Kamins, New York Search and Seizure § 1.02 [2] [d] [Matthew Bender, Rev. Ed. 2024]; Adams v Williams, 407 U.S. 143 [1972]; People v Sanchez, 32 NY3d 1021 [2018]; People v Rodriguez, 52 NY2d 483 [1981]; People v DiFalco, 80 NY2d 693 [1993]). The People established both requisite prongs of the test at the Darden hearing.

Even if the ruling in Homer was controlling, the firearm would still not be suppressed based on the information the police had and the actions they took.

Prior to seizing the weapon the officer knew that the defendant did not have a license to possess a firearm due to his familiarity with the defendant and records checks he performed. He also knew the defendant was not old enough to obtain a license. He had credible information that the defendant possessed a firearm and he frisked the defendant, finding an object he believed to be a firearm on the defendant's person, prior to taking the defendant into custody. The knowledge that the defendant could not possibly have had a license due to his age, and the fact that the officer frisked the defendant before arresting him are in accord with the ruling in Homer as to actions the police should take before arresting someone in possession of a firearm.

The facts of Homer are not in accord with the facts of the instant case. Even if they were, this court declines to follow the rationale and result in Homer.

In Homer, a police officer observed the defendant Homer on a live video feed in possession of a firearm on a public street. Homer was in a van associated with gang activity. The officer alerted patrol officers by cell phone and remained in communication with them as they located the defendant, took him into custody, and recovered the firearm.

A very respected jurist on the Eastern District ruled that since the United States Supreme Court's decision in New York State Rifle & Pistol Association v Bruen (597 U.S. 1 [2022]) (hereafter Bruen) now enables more individuals in New York City to legally acquire and publicly carry firearms, the officers did not have probable cause to arrest Homer because they had not run a check to see if he possessed a firearm license. The court reasoned that the officers were allowed to conduct a Terry stop and frisk (Terry v Ohio, 392 U.S. 1 [1967]), seize the weapon, and keep Homer in custody, but not arrest him because they lacked probable cause.

In this court's opinion, the Homer ruling overlooks established portions of New York State law, both with regard to probable cause and firearm licensing provisions, and is not in accord with the reality of street encounters of this type. For these and other reasons, this court declines to follow Homer.

1. The decision in Homer seems to be contrary to the holding of an older case decided by the United States Supreme Court decided after Terry, Adams v Williams (407 U.S. 143 [1972]) which held that "Once (the police officer) had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon" (Adams, supra, 148).

2. Homer's rationale and decision that Bruen changed the nature of "probable cause" is not a consensus view and has been rejected by another Federal court located in New York City.

"The defendant also argues that the officers did not have sufficient probable cause to arrest the defendant because, after New York State Rifle & Pistol Ass'n, Inc. v. Bruen, suspicion that a person has a handgun is not sufficient to justify a street stop . . . (citing United States v. Homer). But there is nothing in Bruen that alters the well-established law in this Circuit that the possession of a firearm provides probable cause to arrest. See, e.g., United States v. Hagood (affirming the district court's decision that the police had reasonable suspicion to support a Terry stop, subsequent frisk, and arrest upon finding a firearm). Bruen has changed the circumstances under which a person can obtain a license to carry a firearm. But that does not mean that a person who possesses a firearm without any claim of lawful, licensed possession, and conceals the firearm and acts in a suspicious manner, has not provided probable cause to arrest"

(United States v Torres, 2024 U.S. Dist LEXIS 51490*: 2024 WL 1251186 [SD NY 2024] [internal citations omitted]).

3. In Homer, the court decided that since Bruen expanded the number of people able to obtain legal carry permits, it also changed the definition of what constitutes probable cause in gun cases. This court does not share that expanded extrapolation of Bruen's holding. Bruen never mentioned probable cause. Bruen did not allude to any change in the rules with regard to what constituted probable cause. Bruen was not a criminal case - no one was arrested or convicted of anything with regard to a firearm. There is nothing in the holding of Bruen that even hints at a fundamental change in the way firearm cases are policed. In fact, the opposite is made clear by Justice Alito's concurrent opinion. "Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, about restrictions that may be imposed on the possession or carrying of guns" (Bruen, 91, concurring op of Alito, J).

4. Licenses to possess and carry firearms in New York City existed prior to Bruen. In fact, "New York State has regulated the public carry of handguns at least since the early 20th century" (Bruen, 14). Bruen did not create a new right in New York. Bruen did not suddenly create a license where none existed previously. Bruen found that "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms" (Bruen, 90) because it placed the burden of proof on a citizen attempting to exercise a Constitutional right rather than on the state to show why a citizen should not be allowed to exercise this particular constitutional right.

Citizens of New York were allowed to possess and carry firearms in public prior to Bruen if they were properly licensed. Bruen did not change the fact that a license to carry a firearm in public is still a lawful requirement for even law-abiding citizens, and that the licensing of firearm possession by a state is not in violation of the Constitution.

"The Second Amendment guaranteed to all Americans the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one [*4]carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials"

(Bruen, 88-89) [internal citation omitted]).

5. The Homer decision is contrary to well-established law. For decades, the observation by a police officer of a person in possession of a firearm established probable cause for the person's arrest. This was so even in the Terry stop and frisk context. Terry and DeBour (People v DeBour, 40 NY2d 210 [1976]) are the primary cases defining the lawfulness of police interaction with civilians in street encounters. Each of these cases addresses the quantum of evidence necessary to allow the police to intrude a person's movement. The cases deal with "founded suspicion", "reasonable suspicion", and "probable cause" for the stop, seizure, search, and arrest, of an individual. The cases and their progeny are concerned with the information and evidence the police possess to justify their actions up to, and until, they seize evidence, whether it be contraband or a firearm, from a person. The court is unaware of any case of this nature that stands for the proposition that once a lawful stop, and/or search, and/or seizure, of a person is effectuated, that there is no probable cause to arrest the person once contraband or a firearm is recovered. Thus, it seems that Homer conflates the reasonable suspicion to stop, search, and seize, with the probable cause to arrest. Prior to Bruen it was possible that the person possessing a firearm in public might have a license for the firearm, yet the observation of a firearm still established probable cause to arrest. This proposition was true even where the police did a Terry frisk first and then found a gun. Once the gun was found, courts, for decades, ruled that probable cause for an arrest was established. No license check was required.

6. Homer seems to overlook a simple proposition. If the person arrested, or taken into custody, actually has a valid license, the situation would be over in a matter of minutes because a "law-abiding citizen" would know that Penal Law § 400 (8) requires that

"Every licensee while carrying a pistol or revolver shall have on his or her person a license to carry the same. Every person licensed to possess a pistol or revolver on any particular premises shall have the license for the same on such premises . . . Upon demand, the license shall be exhibited for inspection to any peace officer, who is acting pursuant to his or her special duties, or police officer".^[FN2]

Thus, if the individual stopped had a license or carry permit, and was "arrested" for possession of that firearm, he would be free to leave once he showed the police his license. Bruen has changed the circumstances under which a person can obtain a license to carry a firearm, but that does not mean that "a person who possesses a firearm without any claim of lawful, licensed possession, and conceals the firearm and acts in a suspicious manner, has not provided probable cause to arrest" (United States v Torres, 2024 U.S. Dist. LEXIS 51490 [SD NY 2024], citing United States v. Hagood, 78 F.4th 570, 572-73, 577-80 [2d Cir. 2023]).

7. In the initial Homer decision, the court stated that "The police in New York have the tools to ensure that they protect the right of the public to be free from unreasonable searches and seizures while preventing the unlawful possession and carrying of firearms. But they declined to use the tools here". This proposition seems to overlook the fact that the rationale of Homer [*5]allows the police to conduct a full search of a person, restrict that person's freedom of movement and seize a possibly lawfully possessed weapon on a reasonable suspicion, something less than probable cause, since the observation of the weapon itself, according to Homer, does not constitute probable cause. It just doesn't allow the police to say "You are under arrest" until they perform a license check. It is hard to rationalize how the observation of a firearm can give the police reasonable suspicion that a crime is being committed when Homer makes a license check the most important part of the probable cause equation. Taken to its logical extension, this seems to be contrary to the protection of the right of the public to be free from unreasonable searches and seizures.

There was probable cause to search and arrest the defendant. The firearm was seized properly and lawfully; additional property was seized from the defendant's person pursuant to a lawful arrest. Accordingly, the defendant' motion to suppress physical evidence is denied'

This decision constitutes the decision and order of the court.