Second Amendment Challenge to Provisions of State's Gun Possession Laws Rejected by Appeals Panel
MONDAY, APRIL 25, 2011

Steve Wasserman, a staff attorney in the Criminal Practice's Special Litigation Unit, was quoted in a New York Law Journal story regarding a decision by the Appellate Division, Second Department rejecting a challenge to two provisions of the State's criminal gun possession laws as violating the Second Amendment right to bear arms. The appeals panel found that the U.S. Supreme Court's decision in District of Columbia v. Heller recognizing an individual constitutional right to bear arms did not apply to specific provisions of New York's law barring the ownership of unlicensed handguns. Since the Heller ruling, at least six state trial judges have rejected Second Amendment challenges to various provisions of New York's criminal gun possession laws, Wasserman told the New York Law Journal. No trial judge has upheld such challenges, he said.


The New York Law Journal
Gun Curb Survives High Court Decision
April 25, 2011
By Daniel Wise

An appeals panel in Brooklyn last week rejected a challenge to two provisions of New York state's criminal gun possession laws as violating the Second Amendment right to bear arms.

In People v. Hughes, 989/08, the Appellate Division, Second Department, joined the Third Department in finding that U.S. Supreme Court's ground-breaking decision in 2008 recognizing an individual constitutional right to bear arms did not apply to specific provisions of New York's laws barring the ownership of unlicensed handguns.

The unsigned unanimous opinion in Hughes found provisions in the state Penal Law (PL) defining the crimes of criminal possession in the second and third degrees to be "consistent with the Supreme Court's determination [in District of Columbia v. Heller, 554 U.S. 570] that, although individuals may have a constitutional right to bear arms in the home for self defense, this right is not unlimited and may be subject to certain limitations."

The Third Department in 2009 rejected a similar challenge aimed at a conviction for criminal possession in the fourth degree as well as one in the second degree, People v. Perkins, 62 A.D.3d 1160.

Since the Heller ruling, at least six state trial judges have rejected Second Amendment challenges to various provisions of New York's criminal gun possession laws, said Steven B. Wasserman, an attorney with the special litigation unit of the Legal Aid Society. No trial judge has upheld such challenges, he said.

In the Second Department case, a jury acquitted Franklin Hughes of homicide in a Nassau County case but convicted him on two gun possession counts.

Both counts explicitly required that Mr. Hughes must have been previously convicted of "any crime" to be convicted on the gun counts. Mr. Hughes had previously been convicted for attempted possession of a controlled substance in the fifth degree, a class E felony, and resisting arrest, a class A misdemeanor.

The top count, possession in the second degree, requires possession of a loaded firearm, while possession in the third degree merely requires possession of a gun.

Nassau County Court Judge George R. Peck sentenced Mr. Hughes to 3 1/2 years in prison for second-degree possession.

In sustaining the convictions and sentence, the Second Department panel noted that Justice Antonin Scalia in Heller specifically stated that the Court's opinion should not "be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons."

The gun possession provisions at issue in the case before it, the panel noted, "represent a policy determination by the Legislature that an illegal weapon is more dangerous in the hands of a convicted criminal than in the possession of a novice to the criminal justice system," incorporating a quotation from People v. Montilla, 10 NY3d 663.

Both the Second Department and the Third Department in Perkins agreed that the New York gun possession provisions before them do not impose "a complete ban" on gun ownership and therefore do not contain the type of "severe restrictions" that prompted the Supreme Court to strike down Washington, D.C.'s "total[] ban" on gun possession in the home.

The Third Department in Perkins relied on the Heller Court's concern about banning guns in the home. "Here the defendant was not in his home at the time of the crime and did not have a valid pistol permit," Justice Leslie E. Stein wrote for the panel.

The Second Department panel consisted of Justices Joseph Covello (See Profile), Daniel D. Angiolillo (See Profile), Thomas A. Dickerson (See Profile) and Sheri S. Roman (See Profile).

Chris Munzing, a spokesman for Nassau County District Attorney Kathleen M. Rice, said the panel's ruling is a "correct application" of Heller that "the right to bear arms is not absolute and that there are certain legitimate limitations."

Assistant District Attorneys Yael V. Levy and Richard R. Martell handled the appeal for the prosecution.

Mr. Hughes was represented by Michael A. Fiechter, whose office is in Bellmore, L.I. Mr. Fiechter was unable to comment because he was observing Good Friday.