People v. Powell

Kupferman, J.,

dissents in a memorandum as follows: We are all agreed as to the issue and the facts and merely differ as to the conclusion. The question is whether the defendant is guilty of criminal possession of a weapon in the third degree, a felony, or criminal possession of a weapon in the fourth degree, a misdemeanor. The defendant was found with a loaded pistol in the lobby of the Men’s Shelter on East 3rd Street in Manhattan. He was a member of the permanent population of such shelter, and therefore it was his only home. He would sleep in a large auditorium on the first floor called “The Big Room”. This first floor also contained the lobby and a bathroom. To all intents and purposes, this lobby could be the equivalent of the foyer in a private home. Pursuant to subdivision 4 of section 265.02 of the Penal Law, if the possession of a loaded firearm takes place in a person’s home and he has not previously been convicted of a crime (Penal Law, § 265.02, subd [1]), the crime is only a misdemeanor of criminal possession in the fourth degree. This defendant has not previously been convicted of a crime. The court in its charge to the jury made it quite clear that if the area involved was a public place, then “it cannot be the defendant’s home”. This undoubtedly followed the definition of public place in subdivision 1 of section 240.00 of the Penal Law. However, given the situation of a person living in a men’s shelter, this had the effect of foreclosing the opportunity for the jury to consider his special situation. Under the circumstances, his guilt being acknowledged and having been sentenced to time served, there would be no purpose in remanding for a new trial. It would seem, therefore, that the judgment should be modified to the extent of reducing defendant’s conviction to possession in the fourth degree. (See CPL 470.20, subd 4.)