People v. Francis

Shapiro, J. (dissenting).

In this case the defendant pled

guilty to attempted possession of a weapon as a felony and was sentenced to six months’ imprisonment. He now appeals from the judgment of conviction entered on that plea. In my opinion the judgment should be modified as hereinafter stated.

The crime of possession of a weapon as a felony — charged in the indictment — requires as a concomitant that such possession not occur in the defendant’s “home or place of business ” (Penal Law, § 265.05, subd. 2)1; if such possession takes place in the defendant’s home or place of business the crime is a misdemeanor and not a felony, unless the defendant has been previously convicted of a crime — a situation not here present (Penal Law, § 265.05, subd. 3).

*436The defendant, a Post Office employee for more than 11 years, was attached to the Post Office at the John F. Kennedy Airport. The arresting police officer alleged that he had been informed that the defendant was carrying a gun. He approached the defendant in the Post Office, observed a bulge ‘ ‘ in his left side and removed therefrom in holster a .38 cal. Smith and Wesson revolver.” The defendant thereupon was arrested. Upon being searched, the police officer found five rounds of live ammunition in his left pocket which fit the gun. The defendant had no permit for the gun.

In accepting the plea to attempted possession of a weapon as a felony the trial court was made aware of the fact that the defendant’s possession of the weapon and the live ammunition had taken place in the Post Office. If the Post Office was the defendant’s place of business, thus negating the felony element of the statute, it was the court’s duty not to accept the defendant’s plea of guilty to a felony (People v. Serrano, 15 N Y 2d 304).

I have been unable to find any New York case on an appellate level which holds that a fixed place of employment is or is not one’s place of business, although three cases at the trial level have held that a taxicab is a taxi driver’s place of business within the meaning of subdivision 2 of section 265.05 of the Penal Law (People v. Santana, 77 Misc 2d 414; People v. Santiago, 74 Misc 2d 10; People v. Anderson, 74 Mise 2d 415).2

Neither side has referred to any out-of-State “place of business ’ ’ statutes, but independent research reveals that there are a number of such statutes.

*437In Flores v. State of Texas (486 S. W. 2d 577 [Texas, 1972]), under a Texas statute which entirely exempted the possession of a gun in one’s own place of business from criminal responsibility, the court held that an employee of a bar who possessed a gun in such premises was in his place of business. In Page v. State (25 S. W. 774 [Ct. of Crim. App. of Texas] )r it was held that an employee of a bank was justified under the law in carrying a weapon in the bank because that was his place of business. In Hare v. State (71 Tex. Or. Rep. 395), it was held that an employee of a lumber company was legally permitted to carry a weapon on and between the areas of the forest he was assigned to cut. In Barker v. Satterfield (111 S. W. 437), in construing the same statute the Texas court held that a conductor on a moving train was in his own place of business. In Miller v. State (12 Gra. App. 479), it was held that a farmhand on a plantation could legally carry a gun from his lodging to his employee’s residence because they constituted his place of business.

The applicable statement in Corpus Juris Secundum reads:

“ Under statutes excepting one’s place of business from a prohibition against the carrying or possession of weapons, ‘ place of business ’ may be described broadly as the place where a person earns his livelihood. * * * The place of business contemplated by the exception has reference to a particular locality appropriated to a business ” (94 C. J. S., Weapons, § 9, subd. [3], p. 503).

The majority relies upon State of New Jersey v. Valentine (124 N. J. Super. 425) as authority for the view that 11 a statutory exception permitting one to keep or carry about a firearm at his place of business or dwelling would not be extended to include the manager of a bar owned by another ”. But Valentin# is inapposite here. The New Jersey statute which the Appellate^ Division of the Superior Court of New Jersey interpreted in Valentine3 did, in fact, create an “ exception” to “ the overriding philosophy ” which the New Jersey Legislature embodied in its laws against possession of a firearm on one’s person in a public place without a permit ‘ ‘ to limit the use of guns as much as possible ” (Valentine, p. 427). The same public policy is *438reflected in section 265.05 of our Penal Law which, as stated in the majority opinion, was “ designed to limit the use of guns, ever mindful of the fact that ‘ concealed weapons present an immediate and real danger to the public ’ (cf. People v. Moore, 32 N Y 2d 67, 72).” The New Jersey statute, however, provides that nothing in the section under which Valentine was convicted shall be construed ‘ * to prevent a person from keeping or carrying about his place of business * * * any firearm ” (N. J. Stat., § 2A¡151-42, subd. a). Thus there is a blanket exemption in such a case. Our statute governing possession of firearms contains no such exception or exemption; both types of possession are made criminal though our statute imposes a lesser penalty for possession of a firearm and a quantity of ammunition in one’s place of business by declaring such possession to be a class A misdemeanor rather than a class D felony, the penalty otherwise assigned to possession of firearms (Penal Law, § 265.05, subds. 2, 3). Thus in New York, unlike New Jersey, interpreting the term “place of business ” as including the place of business of an employee as well as of an owner of the business, will not, as the Appellate Division of the Superior Court of New Jersey feared, result in the opening of the door “ to a multiplicity of situations where the term manager might be invoked to sanction possession of a weapon otherwise proscribed by N. J. S. A. 2A:151-41 ” (State of New Jersey v. Valentine, 124 N. J. Super. 425, 427, supra). Thus the ratio decidendi for the Valentine decision is clearly inapplicable under our statute, since the possession of the firearm does not clear the possessor of all criminal responsibility.

The cases cited and the statement from Corpus Juris Secundum accord with logic and sound reasoning. Indeed they carry out the thought expressed in section 5.00 of the Penal Law, which mandates that “the provisions * * * [of the Penal Law] must be construed according to the fair import of their terms to promote justice and effect the objects of the law Furthermore, it is basic that a criminal statute is to be narrowly construed against the State and in favor of the accused (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, §§ 271, 276; People v. Nelson, 153 N. Y. 90, 94; People v. Shakun, 251 N. Y. 107,113).

The District Attorney asserts that ‘ ‘ arguably, since an owner illegally possessing a gun on his business premises is criminally liable for only an A misdemeanor, any employee who [sic] he leaves in charge of the premises should come within the purview *439of the statutory exception ’ He then argues that because ‘1 appellant had no proprietary interest in the post office nor was he in charge of its operation ” he did not have the “ personal stake in the security of the post office that the legislators intended when the exception was made

The construction contended for by the District Attorney is too rigid and narrow. If the term “place of business” is “susceptible of reasonable application in accordance with the common understanding of men ” (cf. People v. Cruz, 34 N Y 2d 362), it should be given the meaning that could reasonably be ascribed to it by the average person. Thus, could not a bookkeeper working in an office reasonably believe that to be her place of business; would not a doctor employed by an industrial firm be justified in saying that his office was his place of business; and would not, a district attorney have justifiable reason for stating, in answer to an inquiry, that his office was his place of business ? Many similar examples might be given to illustrate the point. Since the words used in a penal statute must be given their usual, ordinary and commonly accepted meaning as understood by ordinary people (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 271, subd. c; People v. Glubo, 5 N Y 2d 461, 470; Bright Homes v. Wright, 8 N Y 2d 157, 161-162) and since to be made criminal ‘ ‘ the proscribed conduct * * * should be clearly enunciated so that all those who may be affected may gauge their actions accordingly” (People v. Scott, 26 N Y 2d 286, 291; People v. Munoz, 9 N Y 2d 51, 56; People v. Byron, 17 N Y 2d 64; People v. Caswell-Massey Co., 6 N Y 2d 497), the words ‘1 place of business ’ ’ should be construed, at the very least, as including any fixed place of employment.

The judgment of conviction should therefore be modified by reducing it to the misdemeanor of attempted possession of a firearm (cf. People v. Englese, 7 1ST Y 2d 83). I agree with the majority that the sentence (in view of the defendant’s exemplary probation report) should be reduced to the time served.4

Hopkins, Acting P. J., and Latham, J., concur with Brennan, J.; Shapiro, J., dissents and votes to modify the judgment by reducing the conviction to the misdemeanor of attempted possession of a firearm and reducing the sentence to the time served, and to affirm the judgment as so modified, with an opinion, in which Christ, J., concurs.

*440Judgment of Supreme Court, Queens County, rendered February 20, 1973, modified, as a matter of discretion in the interest of justice, by reducing the sentence to the time served. As so modified, judgment affirmed.

. The pertinent sentence in this statute reads: Such possession shall not, except as provided in subdivision three of this section, constitute a felony if such possession takes place in such person’s home or place of business.” This provision first appeared in subdivision 2 of section 1897 of the former Penal Law, effective July 1,1964 (L. 1964, ch. 521), on the recommendation of the New York State Joint Legislative Committee on Firearms and Ammunition. Unfortunately, the 1964 report of that committee (N. Y. Legis. Doc., 1964, No. 12) offers no insight into the legislative intent.

. The majority opinion states that “ this court has recently held to the contrary in People v. Levine (42 A D 2d 769) ”, a taxicab case, wherein it modified a sentence of an indeterminate term not to exceed four years, on a guilty plea, to a five-year term of probation. Such a sentence could not be imposed if the offense were a misdemeanor. However, the distinguishing features in Levine are (1) that the defendant did not display the firearm in his possession in connection with his operation of his taxicab as a cab for hire, but when he became involved in an argument with another motorist, and (2) that his plea of guilty to possession of weapons and dangerous instruments and appliances as a felony was accepted in connection with the dismissal of an additional indictment against him for reckless endangerment in the first degree, also a class D felony. See, also, United States v. Waters (73 F. Supp. 72 [D. C.], app. dsmd. 335 U. S. 869); People v. Cosby (118 Ill. App. 2d 169); Matthews v. State (237 Ind. 677), in which the courts came to similar conclusions in taxicab cases. They may, however, be distinguishable nnder the terms of the particular statutes involved which, in the Waters case, referred to “ dwelling house or place of business or on other land possessed by him ” and in the Cosby and Matthews cases referred to fixed place of business ”.

. In New Jersey the applicable statute reads:

Nothing contained in section 2A :151-41 shall be construed:
“ a. to prevent a person from keeping or carrying about his place of business, dwelling house, premises, or on land possessed by him, any firearm or from carrying the same from any place of purchase to his dwelling house or place of business, or from his dwelling house or place of business to or from any place where repairing is done, to have the same repaired.”

. The defendant was released on bail on March 28, 1973 after serving about five weeks of his six months’ sentence.