DECISION In 2013, the Legislature enacted Penal Law §265.01-b as part of a package of statutory amendments aimed at curbing gun violence. As relevant here, subdivision one of the new statute, entitled criminal possession of a firearm, makes the possession of any firearm a class E felony. The same conduct is also prohibited by the class A misdemeanor of criminal possession of a weapon in the fourth degree. The defendant, who is now standing trial on an indictment charging him with two counts of criminal possession of a firearm, has requested the court, in the alternative, to submit criminal possession of a weapon in the fourth degree to the jury. For the reasons which follow, the court finds, as a matter of first impression, that criminal possession of a weapon in the fourth degree cannot be submitted to the jury as an alternative to criminal possession of a firearm. The defendant Alfredo Battaglia is a business owner who is licensed to possess two Kahr pistols. The evidence presented at trial indicates that on the morning of January 5, 2016, police officers went to the Battaglia home to follow up on a domestic violence complaint made by the defendant’s wife in December 2015. During that follow up visit, the defendant’s wife advised the officers that there were firearms in the home. She then led the officers into an attached garage, and pointed out a tool chest containing two unlicensed pistols. It is undisputed that at the time the pistols were recovered, the defendant and his wife were involved in a bitter divorce action, which is still pending.The class E felony of criminal possession of a firearm (Penal Law §265.01-b) was enacted as part of the NY SAFE Act of 2013. The 2013 legislation implemented a variety of statutory reforms with the goal of creating “the toughest, most comprehensive and balanced answer in the nation to gun violence” (Introducer’s Mem in Support, Bill Jacket, L 2013, ch 1). To this end, the legislation banned the ownership, purchase and sale of certain assault weapons, closed a loophole excluding private sales of guns from federal background checks, and tightened provisions governing gun ownership by persons with serious mental illness. As relevant here, the 2013 legislation also prescribed new and enhanced penalties for certain gun offenses, which included raising possession of a firearm under the present circumstances from a class a misdemeanor to a class E felony. However, the Legislature did not repeal the portion of the misdemeanor possession statute, Penal Law §265.01(1) which lists “any firearm,” as a prohibited weapon. As a result, a defendant, through the same conduct of possessing a firearm, can be found guilty of either the class E felony of criminal possession of a firearm, or the class A misdemeanor of criminal possession of a weapon in the fourth degree.The defendant points out that the enactment of Penal Law §265.01-b in 2013 without a corresponding amendment of Penal Law §265.01(1) created a statutory anomaly, and that the existence of this anomaly, therefore, gives the court the discretion to submit the misdemeanor of criminal possession of a weapon in the fourth degree to the jury as an alternative to criminal possession of a firearm. In support of his position, the defendant emphasizes that he is a business owner who is licensed to possess two handguns, and argues that criminalizing his alleged possession of two unlicensed firearms in his home as a felony would not further the legislative intent of reducing gun violence. In response, the People note that the 2013 legislation increased the penalties associated with gun possession, and submit that it was not the legislative intent to parse out which persons are deserving of being charged with criminal possession of a firearm as a felony rather than a misdemeanor.In support of his position that the court has discretion to submit criminal possession of a weapon in the fourth degree to the jury as a lesser included offense, the defendant relies upon People v. Discala (45 NY2d 38 [1978]). In Discala, the Court of Appeals considered the issue of whether the misdemeanor of coercion in the second degree could be considered a lesser included offense of the felony of coercion in the first degree. One of the ways in which the crime of coercion can be committed is by compelling the victim to engage in conduct from which he or she has a legal right to abstain by instilling in the victim a fear that if the demand is not complied with, a person will be injured or property damaged. The Court of Appeals noted that when the crime of coercion is committed in this fashion, “it is an anomaly of our statutes that the language used to define the felony of coercion in the first degree…is virtually identical to that employed to describe the misdemeanor of coercion in the second degree.” The Court of Appeals reasoned that while the Legislature generally intended the crime of coercion in the first degree to be charged whenever the method of coercion was to instill a fear of injury to a person or damage to property, making the misdemeanor offense all-inclusive was “a safety valve feature included in the event an unusual factual situation should develop where the method of coercion is literally by threat of personal or property injury, but for some reason it lacks the heinous quality the Legislature associated with such threats.” Since the two offenses could be distinguished based on the degree of heinousness involved in the threatened conduct, the Court of Appeals concluded that it was theoretically possible to commit the misdemeanor offense of coercion in the second degree without committing the greater offense. The court “thus left open the possibility that, based on the evidence presented in a given case, a trial court could submit second-degree coercion as a lesser included offense of coercion in the first degree if the threatened physical injury is not truly fearsome” (People v. Finkelstein, 28 NY3d 345 [2016]).In contrast, there is no discernable distinction between the felony of criminal possession of a firearm and the misdemeanor of criminal possession of a weapon when that offense is committed through the possession of a firearm. Both statutes criminalize the simple possession of an unlicensed firearm, without regard to the possessor’s perceived degree of moral culpability. Thus, it is not theoretically possible to commit the misdemeanor by possession an unlicensed firearm without also committing the felony. Moreover, even if a distinction could be read into the two statutes which would allow misdemeanor possession to be submitted in less blameworthy circumstances, no reasonable view of the evidence would support such submission. The defendant emphasizes that he is a successful businessman with no prior criminal record, and that he is licensed to possess other weapons. However, the evidence presented indicates that he kept two unlicensed pistols, which were loaded, in an unlocked toolbox in the garage attached to his home, where he lived with his wife and five children in an atmosphere of extreme domestic strife. The potential for gun violence in this situation cannot be overlooked.The court further notes that the law provides the prosecutor with broad discretion to decide what crimes to charge, and overlapping criminal statutes do not violate a defendant’s constitutional rights (see People v. Robinson, 95 NY2d 179, 184 [2000]; People v. Lawrence, 81 AD3d 1326, 1327 [4th Dept. 2011]; People v. Greene, 57 AD3d 1004] [2nd Dept. 2008]). “Absent a contrary legislative intent, ‘overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution’” (People v. Robinson, 95 NY2d at 184, quoting People v. Eboli, 34 NY2d 281, 287 [1974]). By imposing a more serious penalty on those who possess a firearm, the Legislature clearly intended to set possession of a firearm apart from possession of the other types of weapons included within the purview of the misdemeanor statute, such as stun guns, gravity knives, and metal knuckles. For this court to submit the misdemeanor of criminal possession of a weapon to the jury under these circumstances would be contrary to the legislative intent underlying the enactment of the NY SAFE Act of 2013, and improperly invite jury nullification.This constitutes the decision and order of this court.Dated: June 25, 2018Kew Gardens, New York
