The People, Respondent,v.Franklin Hughes, Appellant.

Brief

N.Y.October 9, 2013

To be argued by: SIMON HELLER 10 minutes requested Supreme Court, Nassau County, Ind. No. 979N-08 State of New York Court of Appeals PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANKLIN HUGHES, Defendant-Appellant, and ATTORNEY GENERAL OF THE STATE OF NEW YORK, Intervenor. BRIEF FOR INTERVENOR ATTORNEY GENERAL BARBARA D. UNDERWOOD Solicitor General RICHARD DEARING Deputy Solicitor General SIMON HELLER Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Intervenor 120 Broadway New York, New York 10271 (212) 416-8025 (212) 416-8962 (facsimile) Dated: February 28, 2013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES..............................................................ii PRELIMINARY STATEMENT ........................................................ 1 QUESTION PRESENTED................................................................ 4 STATEMENT OF THE CASE .......................................................... 5 A. Licensing of Handguns in New York ............................. 5 B. The Crime of Unlicensed Possession of a Handgun................................................................... 7 ARGUMENT THE CONVICTIONS HERE DO NOT VIOLATE THE SECOND AMENDMENT ............................................11 CONCLUSION ................................................................................ 18 ii TABLE OF AUTHORITIES Cases Page Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) ......................................................... 13 District of Columbia v. Heller, 554 U.S. 570 (2008) .............................................................. 12, 13 Epps v. State, 55 So. 3d 710 (Fla. Dist. Ct. App. 2011).................................... 14 Ewing v. California, 538 U.S. 11 (2003)...................................................................... 16 Farmer v. State, 235 P.3d 1012 (Alaska 2010) ..................................................... 14 Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), petition for cert. filed, No. 12-845 (U.S. Jan. 8, 2013)..................................................... 8 Matter of Dalton v. Drago, 72 A.D.3d 1243 (3d Dep’t 2010)................................................... 7 Matter of O’Connor v. Scarpino, 83 N.Y.2d 919 (1994).................................................................... 5 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).......................................................... 12, 13 People v. Montilla, 10 N.Y.3d 663 (2008).................................................................. 16 Pohlabel v. State, 268 P.3d 1264 (Nev. 2012) ......................................................... 14 State v. Craig, 807 N.W.2d 453 (Minn. Ct. App. 2011) ..................................... 14 iii TABLE OF AUTHORITIES (cont’d) Cases Page State v. Curtiss, No. 102,604, 2010 Kan. App. Unpub. LEXIS 842, 242 P.3d 1281 (Ct. App. 2010)................................................... 14 State v. Pocian, 2012 WI App. 58, 341 Wis. 2d 380 (Ct. App. 2012) .................. 14 United States v. Anderson, 559 F.3d 348 (5th Cir. 2009)...................................................... 14 United States v. Barton, 633 F.3d 168 (3d Cir. 2011) ....................................................... 14 United States v. Decastro, 682 F.3d 160 (2d Cir. 2012) ....................................................... 12 United States v. Joos, 638 F.3d 581 (8th Cir. 2011)...................................................... 15 United States v. Khami, 362 F. App’x 501 (6th Cir. 2010) ............................................... 14 United States v. McCane, 573 F.3d 1037 (10th Cir. 2009).................................................. 15 United States v. Moore, 666 F.3d 313 (4th Cir. 2012)...................................................... 14 United States v. Rozier, 598 F.3d 768 (11th Cir. 2010).................................................... 15 United States v. Stuckey, 317 F. App’x 48 (2d Cir. 2009)................................................... 14 United States v. Torres-Rosario, 658 F.3d 110 (1st Cir. 2011) ...................................................... 14 iv TABLE OF AUTHORITIES (cont’d) Cases Page United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010).................................................... 15 United States v. Williams, 616 F.3d 685 (7th Cir. 2010)...................................................... 15 Statutes Penal Law § 10.00........................................................................................... 9 § 70.02........................................................................................... 9 § 205.30....................................................................................... 10 § 265.00........................................................................... 6, 7, 8, 17 § 265.01................................................................................... 8, 10 §§ 265.01-.04................................................................................. 7 § 265.02..................................................................................... 1, 9 § 265.03..................................................................................... 1, 9 § 265.20......................................................................................... 8 § 400.00................................................................................. 5, 6, 7 18 U.S.C. § 922(g)(1)....................................................................... 14 PRELIMINARY STATEMENT Appellant Franklin Hughes killed Quentin Roseborough using a revolver which he had no license to possess. After a bench trial, Hughes was convicted of Criminal Possession of a Weapon in the Second Degree, Penal Law (P.L.) § 265.03(3) (possession of a loaded firearm with a prior conviction), and Criminal Possession of a Weapon in the Third Degree, P.L. § 265.02(1) (possession of a firearm with a prior conviction).1. Hughes argues that these statutes made his possession of a revolver a crime—or perhaps a serious crime—solely because he had a past misdemeanor conviction for resisting arrest, and contends that this violates the Second Amendment to the United States Constitution. The Attorney General intervenes pursuant to Executive Law § 71 to defend against Hughes’s constitutional challenge to P.L. §§ 265.02 and 265.03. This case simply does not raise the constitutional issue that Hughes suggests it does. Contrary to 1 He was acquitted of homicide charges, and of possessing an unlicensed loaded weapon with intent to use it unlawfully against another person. 2 Hughes’s description, New York law did not make Hughes’s possession of the revolver unlawful because he had a past misdemeanor conviction. The law made his possession of the revolver unlawful because he did not have a handgun license authorizing his possession of it. And New York law did not preclude Hughes from obtaining such a license by virtue of his past misdemeanor conviction, but rather because he had a past felony conviction for attempted criminal possession of a controlled substance in the fifth degree. Hughes does not challenge New York’s requirement that a person obtain a license before possessing a handgun, and does not challenge New York’s law prohibiting a convicted felon from obtaining a license. If Hughes did raise such challenges, they would fail under uniform case law affirming that state laws do not violate the Second Amendment either by requiring a license before a person may possess a handgun or by prohibiting convicted felons from obtaining such a license. To be sure, Hughes’s past misdemeanor conviction for resisting arrest did elevate the seriousness of his weapons 3 offenses. Though unlicensed possession of a handgun by any person is a crime, the degree of the crime is increased where the offender has a prior criminal conviction. Here, the predicate conviction described in the special information supporting the indictment was Hughes’s misdemeanor conviction, not his felony conviction, though there is no reason why the felony conviction could not have been used as the predicate offense instead. On the particular indictment returned here, Hughes’s past misdemeanor conviction essentially increases the punishment to which Hughes is subject for possessing a gun without a license. But his unlicensed possession would be prohibited by state law whether he had a misdemeanor conviction or did not. Statutes commonly use prior crimes as a basis to increase the sentence for crimes of every type. The Second Amendment does not prohibit the use of that common sentencing strategy where crimes of weapons possession are concerned. The increase in the criminal punishment for this unlawful possession based on Hughes’s past misdemeanor conviction does not implicate the Second Amendment, because it turns on criminal conduct that the 4 Amendment does not protect. Hughes’s misdemeanor conviction is therefore a red herring in the constitutional analysis here. QUESTION PRESENTED Whether the enhancement of the penalties for unlicensed possession of handguns based on prior conviction of a crime violates the Second Amendment. Both Supreme Court and the Appellate Division answered no. 5 STATEMENT OF THE CASE We adopt the statement of facts contained in the Respondent’s Brief and add the following description of the framework of New York’s statutes governing the licensing of handguns and criminalizing the possession of unlicensed handguns, as they pertain to Hughes’s convictions. A. Licensing of Handguns in New York An eligible individual may apply for any of several types of licenses to possess or carry a handgun. The most basic license is a residence license, which authorizes a person to possess a pistol or revolver in his or her dwelling. P.L. § 400.00(2)(a). A merchant or shopkeeper may apply for a license to keep a handgun in his or her place of business. P.L. § 400.00(2)(b). Persons may also seek a license to carry a concealed handgun in public. P.L. § 400.00(2)(f).2 2 A concealed handgun license may be restricted to specific purposes set forth in the license application, such as use in target practice or hunting. Matter of O’Connor v. Scarpino, 83 N.Y.2d 919, 921 (1994). 6 The statute also authorizes additional kinds of licenses that apply in narrower circumstances. P.L. § 400.00(2)(c)-(e). P.L. § 400.00(1) provides that an applicant is eligible for a license only if he or she: (1) is at least twenty-one years old; (2) is of good moral character; (3) states whether he has ever suffered from any mental illness or been confined to a hospital for mental illness; (4) has not had a license revoked or be subject to a court order rendering him ineligible; and (5) has not been convicted anywhere of a felony or nonfelony serious offense enumerated in P.L. § 265.00(17).3 Because Hughes has been convicted of a felony in New York (see Respondent’s Supplemental Appendix (“R.S.A.”) 380), he is statutorily ineligible for a handgun license. After an application for a license is filed, police officials investigate the applicant’s mental health history, moral character and criminal history, including a background check based on the applicant’s fingerprints with the state Division of Criminal Justice Services and the Federal Bureau of Investigation. After the 3 In Westchester County, applicants must also certify that they have completed a firearms safety course. P.L. § 400.00(1)(f). 7 investigation is completed, a licensing officer—usually a state judge4—decides whether to grant the application. Before granting a license, the licensing officer must determine that the requirements set forth above are satisfied and must also find no “good cause” for denial of the license. P.L. § 400.00(1)(g). An applicant may obtain judicial review of the denial of a license by filing a petition under article 78 of the C.P.L.R. See, e.g., Matter of Dalton v. Drago, 72 A.D.3d 1243 (3d Dep’t 2010). B. The Crime of Unlicensed Possession of a Handgun In order to deter and punish the possession of handguns by persons who skirt the licensing process or are ineligible for handgun licenses, the Legislature has included unlicensed possession of a handgun among the weapons possession crimes in P.L. §§ 265.01-.04. These statutes are worded as categorical prohibitions against the possession of a handgun, but contain an 4 In New York City and Nassau County, the licensing officers are the police commissioners of those jurisdictions. In Suffolk County, the licensing officer is either the county sheriff or certain town police commissioners. See P.L. § 265.00(10). 8 exemption for possession of a handgun pursuant to a duly issued license. P.L. § 265.20(3). The degree of severity of the crime of possessing a handgun without a license depends on various factors. The lowest degree offense, criminal possession of a weapon in the fourth degree, is a class A misdemeanor and, as relevant here, occurs when any person possesses a handgun without a license. P.L. § 265.01(1).5 Criminal possession of a weapon in the third degree, a class D felony, occurs, as relevant here, when a person possesses an unlicensed handgun and has been convicted of “any crime,” which includes a misdemeanor or felony, but not a violation or traffic 5 P.L. § 265.01(1) prohibits possession of any “firearm” without a license. Penal Law § 265.00(3) defines “firearm” to include pistols and revolvers; shotguns with barrels less than eighteen inches in length; rifles with barrels less than sixteen inches in length; “any weapon made from a shotgun or rifle” with an overall length of less than twenty-six inches; and assault weapons. Thus, possession of long guns—including most rifles and shotguns—by those not previously convicted of felonies or serious offenses is generally excluded from the statutes prohibiting unlicensed possession of guns. See Kachalsky v. County of Westchester, 701 F.3d 81, 85 & n.3 (2d Cir. 2012), petition for cert. filed, No. 12-845 (U.S. Jan. 8, 2013). 9 infraction. See P.L. § 265.02(1); see also Penal Law §10.00(6) (defining “crime”).6 Criminal possession of a weapon in the second degree, a class C felony, occurs, as relevant here, when a person possess an unlicensed handgun that is loaded, and in addition another element is present. The additional elements relevant here are: intent to use the weapon against another, P.L. § 265.03(1)(b); possession outside the home or place of business, P.L. § 265.03(3); and prior conviction of a crime, P.L. § 265.03(3) and 265.02(1).7 6 The other subsections of § 265.02—none relevant here— prohibit possession of more serious weapons (such as bombs, machine guns, and assault weapons), prohibit possession of three or more firearms, firearms that have been defaced to conceal their identity or disguised firearms, and possession of firearm silencers or large capacity ammunition feeding devices. In addition, one subsection prohibits possession of a firearm by a person convicted within the preceding five years of a Penal Law class A misdemeanor or felony; violation of this provision is a class D violent felony, see P.L. § 70.02(1)(c); the subdivision under which Hughes was convicted, containing only the added element of conviction of any crime, is a class D nonviolent felony. 7 The second degree statute also prohibits possession of a machine gun, loaded firearm, or disguised gun with intent to use the weapon unlawfully against another person, and possession of five or more firearms. P.L. § 265.03(1), (2). 10 A person who possesses an unlicensed loaded handgun in the home or place of business and has no prior conviction commits the misdemeanor of criminal possession of a weapon in the fourth degree. P.L. § 265.01(1). In this case, Hughes was convicted of criminal possession of a weapon in the second degree and the third degree because he possessed a revolver without a license, the revolver was loaded, and he had a prior criminal conviction. The special information supporting the indictment against Hughes listed his misdemeanor conviction for resisting arrest, P.L. § 205.30, as the aggravating predicate crime (Appellant’s Appendix (“A.”) 98). The information could have listed, but did not list, Hughes’s felony conviction for attempted criminal possession of a controlled substance in the fifth degree (a class E felony) as the aggravating predicate (see R.S.A. 380). 11 ARGUMENT THE CONVICTIONS HERE DO NOT VIOLATE THE SECOND AMENDMENT Hughes’s Second Amendment challenge rests on a fundamentally mistaken understanding of New York law. Contrary to his suggestions, New York law did not prohibit his possession of the revolver because he had a prior misdemeanor conviction for resisting arrest. New York law prohibited his possession of the revolver because he did not have a license for it. Nor did New York law prohibit Hughes from obtaining a license for the revolver because he had the prior misdemeanor conviction; state law barred him from obtaining a license because he had a prior felony conviction. The sole effect of Hughes’s misdemeanor conviction in this case was to serve as the predicate conviction that increased the degree of his crime for possessing a handgun without a license. Once these aspects of the case are understood, it becomes clear that there is no Second Amendment violation. First, the statutory requirement of a license to possess a handgun—and consequently the crime of unlicensed possession of a handgun—does not violate the Second Amendment, and Hughes 12 does not argue that it does. The licensing statute properly ensures that only adult, law-abiding individuals may lawfully possess handguns, and allows the licensing officer to take into account an applicant’s mental health history and moral character. These requirements are fully supported by Supreme Court precedent. The Court has limited the right to possess a handgun in one’s home for self-defense to law-abiding, mentally-healthy citizens, expressly stating that its interpretation of the Second Amendment does not “cast doubt” on prohibitions on possession of handguns by felons or the mentally ill. District of Columbia v. Heller, 554 U.S. 570, 626 (2008); McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010). Indeed, Hughes has not raised any Second Amendment challenge to the validity of New York’s licensing requirement or any of its specific eligibility requirements.8 8 As the Second Circuit recently reaffirmed, a person seeking to challenge the validity of an allegedly unlawful government licensing must first submit to that licensing scheme in order to have standing to sue. United States v. Decastro, 682 F.3d 160, 164 (2d Cir. 2012). Therefore Hughes has no standing to challenge the statutory scheme because he did not apply for a license. An exception to this general rule exists where applying for a license (continued on next page) 13 Second, the provision of New York’s licensing statute prohibiting convicted felons, like Hughes, from obtaining a handgun license does not violate the Second Amendment, and Hughes does not argue that it does. In Heller, the Supreme Court expressly stated that a prohibition on possession of firearms by convicted felons is “presumptively lawful.” 554 U.S. at 627 n.26. In McDonald, the Court reiterated that its Second Amendment holdings cast no doubt on prohibitions against felons possessing handguns. 130 S. Ct. at 3047. Every court to address the question after Heller and McDonald has decided that government may prohibit felons from possessing firearms. State courts have unanimously upheld state- law statutes prohibiting felons from possessing or obtaining would be futile. See Bach v. Pataki, 408 F.3d 75, 83 (2d Cir. 2005). And to be sure Hughes' application would be futile, because of his prior felony conviction, so futility would excuse his failure to apply to the extent of permitting him to challenge the bar on issuance of licenses to felons. But he makes no such challenge, and any such challenge would fail, as shown below. As for his challenges to other aspects of the statute, the futility of his application does not excuse failure to apply; instead it shows that he has not been harmed by any other aspect of the statute and has no standing to bring his challenge. 14 firearms. See, e.g., Farmer v. State, 235 P.3d 1012, 1016 (Alaska 2010); Epps v. State, 55 So. 3d 710, 711 (Fla. Dist. Ct. App. 2011); State v. Curtiss, No. 102,604, 2010 Kan. App. Unpub. LEXIS 842, at *7-*8, 242 P.3d 1281 (Ct. App. 2010) (table); State v. Craig, 807 N.W.2d 453, 464 (Minn. Ct. App. 2011); Pohlabel v. State, 268 P.3d 1264, 1269 (Nev. 2012); State v. Pocian, 2012 WI App. 58, ¶ 12, 341 Wis. 2d 380, 387 (Ct. App. 2012). And every federal court of appeals to consider the question has upheld the constitutionality of 18 U.S.C. § 922(g)(1), which criminalizes the possession of “any firearm or ammunition” in or affecting interstate commerce by a person “who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year,” the traditional definition of a felony. See, e.g., United States v. Torres-Rosario, 658 F.3d 110, 113 & n.1 (1st Cir. 2011); United States v. Stuckey, 317 F. App’x 48, 50 (2d Cir. 2009); United States v. Barton, 633 F.3d 168, 170-75 (3d Cir. 2011); United States v. Moore, 666 F.3d 313, 316-17 (4th Cir. 2012); United States v. Anderson, 559 F.3d 348, 352 n.6 (5th Cir. 2009); United States v. Khami, 362 F. App’x 501, 507-08 (6th Cir. 2010); 15 United States v. Williams, 616 F.3d 685, 691-94 (7th Cir. 2010); United States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011); United States v. Vongxay, 594 F.3d 1111, 1114-15 (9th Cir. 2010); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009); United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010). Unsurprisingly, given the weight of authority, Hughes here raises no challenge to New York’s statutory provision prohibiting issuance of a handgun license to a person, like himself, who has been convicted of a felony. Hughes has thus conceded that, consistent with the Second Amendment, he could have been convicted of criminal possession of a weapon in the fourth degree because he possessed an unlicensed revolver. Any challenge to New York’s statutory bar on felons obtaining handgun licenses would be rejected. Third, there is no merit to Hughes’s claim (see Br. of Appellant at 24) that his Second Amendment rights were violated by the severity of the punishment imposed on him for unlicensed possession of a handgun in the home with a prior misdemeanor conviction. The Second Amendment does not prohibit the State 16 from criminalizing unlicensed possession of a revolver in the home, and Hughes does not claim that it does. The Second Amendment also does not speak to the permissible penalty that may be imposed for prohibited conduct that the Amendment does not protect.9 Nor does the Second Amendment prohibit the State from treating that crime as more serious on the basis of a prior misdemeanor conviction. The aggravated degrees of the offense were not triggered by any protected Second Amendment conduct, but simply by Hughes’s past conviction for resisting arrest. This trigger implements “the Legislature’s judgment 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.” People v. Montilla, 10 N.Y.3d 663, 666 (2008). Consequently, the Second Amendment is not implicated at all. 9 Any claim that the criminal penalty is disproportionate to the crime would arise under the Eighth Amendment, not the Second Amendment. No such claim would succeed here if it had been brought. See Ewing v. California, 538 U.S. 11, 23 (2003) (Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime”). 17 Contrary to Hughes’s suggestions (Br. at 24), the statutory scheme does not bar misdemeanants generally from obtaining handgun licenses, nor was he in particular barred by his misdemeanor conviction from obtaining such a license, and thus this case does not present the question whether such a ban would be permissible. Most misdemeanants in New York are not ineligible for handgun licenses, and, but for his felony conviction, Hughes himself would not have been barred from obtaining a handgun license by his misdemeanor conviction for resisting arrest, which is not a disqualifying “serious offense” under New York’s licensing statute. See P.L. § 265.00(17). Hughes’s misdemeanor conviction merely increased the penalty for Hughes’s unauthorized possession of a handgun—which possession was unauthorized because Hughes lacked a license to possess the weapon. Although the penalty was increased significantly, such an increased penalty does not implicate the Second Amendment. 18 CONCLUSION For the foregoing reasons, the decision of the Appellate Division, Second Department, should be affirmed. Dated: New York, NY February 28, 2013 BARBARA D. UNDERWOOD Solicitor General RICHARD DEARING Deputy Solicitor General SIMON HELLER Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Intervenor By: ____________________________ SIMON HELLER Assistant Solicitor General 120 Broadway New York, NY 10271 (212) 416-8025 Reproduced on Recycled Paper