DECISION OF THE COURT Procedural History On July 1, 2019, the defendant was charged with Criminal Possession of a Weapon in the 3rd Degree in violation of New York State Penal Law §265.02(1) and upon arraignment, a motion was made by the District Attorney’s Office to amend the charge to Criminal Possession of a Weapon in the 4th Degree in violation of Penal Law §265.01(1). Such request was granted and the matter proceeded accordingly. Subsequently, the defendant filed a motion seeking dismissal of the pending charge pursuant to Criminal Procedure Law 170.35(1)(a). The defendant asserts in his motion papers that the accusatory instrument is defective on the basis that a recent federal case determined that the statute defining the underlying offense is unconstitutional as it applies to a ban on stun guns in the State of New York. On September 12, 2019, the Office of the New York State Attorney General submitted correspondence stating that pursuant to New York Executive Law§71 and CPLR §1012(b), the office would not intervene in this matter and requested the Court take no adverse inference due to the non-participation. The Court hereby grants the request and will note that no adverse inference shall be made in this proceeding. On September 20, 2019, the People filed an Answering Affirmation opposing the motion to dismiss, arguing that New York State Courts are not bound by decisions rendered by lower federal court’s rulings when implications of Constitutional rights are in question. The People further indicated and cite case law stating that a party alleging the constitutionality of a statute has a “heavy burden” of demonstrating that a law is unconstitutional “beyond a reasonable doubt”. The Court will note that a claim setting forth that an accusatory instrument is jurisdictionally defective may be raised at any time and Criminal Procedure Law §170.30(1)(a) allows a defendant to move for dismissal of a misdemeanor charge upon the ground that it is defective within the meaning of CPL §170.35. Pursuant to CPL §170.35(1)©, an accusatory instrument is defective when “the statute defining the offense charged is unconstitutional or otherwise invalid” Constitutional Challenge of State Statute Upon entertaining a motion made by a party challenging the constitutionality of a statute enacted by the legislature of the State of New York, the burden rests upon the moving party to demonstrate the “infirmity beyond a reasonable doubt, and only as a last resort will courts strike down legislative enactments on the ground of unconstitutionality” (Schultz Management v. Board of Standards and Appeals of City of New York, 103 AD 2d 687 [1st Dept. 1984] quoting Sgaglione v. Levitt, 37 NY2d 507 [1975]; People v. Buchholz, 53 Misc.3d 563 [Crim Ct, Bronx County 2016] ). Furthermore, when interpreting a statute, the Court must, if possible, preserve the legislation which has been enacted as “legislative statutes enjoy strong presumptions of constitutionality” (People v. Portnoy, 140 Misc.2d 945 [City Ct NY, Bronx County 1988], citing People v. Pagnotta, 25 NY2d 333 [1969]). The statute under scrutiny and subject to this proceeding provides that a person “is guilty of possession of a weapon in the fourth degree when he or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, mental knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or Kung Fu star” (Penal Law §265.01(1)). An”electronic stun gun” is defined by Penal Law §265.00 as “any devise designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electronic shock to such person.” The defendant argues that the recent case involving Avitabile v. Beach, 368 F Supp 3d 404 (ND NY 2019), which found that the ban on stun guns in New York State is unconstitutional, provides the basis necessary to warrant dismissal of the underlying charge against the defendant. However, when undertaking an analysis of the constitutionality of a statute, a lower federal court’s finding is persuasive but not binding on a lower state court as “both sets of courts are governed by the same reviewing authority of the Supreme Court” (People v. Battease, 74 AD3d 1571 [3rd Dept 2010]). Furthermore, it has been held “interpretation of a federal constitutional question by the lower federal courts may serve as useful and persuasive authority” (People v. Kin Kan, 78 NY2d 54 [1991]). The defendant also asserts that dismissal of the charges against the defendant is appropriate as the United States Supreme Court has allegedly found that “total bans on stun guns are unconstitutional” Caetano v. Massachusetts, 136 S.Ct. 1027 [2016]. However, it should be noted that upon analysis of the Supreme Court’s decision, the defendant’s conclusion is not reflective of the holding in Caetano. Simply put, the Supreme Court found that the Supreme Judicial Court of Massachusetts was incorrect in their application of prior binding authority set forth in District of Columbia v. Heller, 128 S.Ct. 2783 [2008]. Specifically, the Court in Caetano found “the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent” and the matter was remanded for further proceedings (Caetano v. Massachusetts, 136 S.Ct. 1027 [2016]). As such, an outright dismissal of the charges filed against the defendant is not warranted and a further analysis must be undertaken as to whether or not the defendant’s constitutional challenge is meritorious in nature. Second Amendment & New York Law The Court will note that New York State Civil Rights Law §4 states “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed”. However, such right is one that is not absolute and restrictions which are reasonable in nature maybe placed thereon (District of Columbia v. Heller, 554 US 570, 128 S.Ct. 2783 [2008]). While the United Supreme Court has found that the Second Amendment of the United States Constitution conveys upon individuals the right to keep and bear arms as “a means of self-defense within the home, it also held that the right conferred by the Second Amendment — and by extension Civil Rights Law §4″ is not absolute and such rights are subject to reasonable restrictions (People v. Perkins, 62 AD3d 1160 [3rd Dept. 2009]). Since the enactment of Penal Law §265.01(1), there have been amendments to this statute wherein additional weapons have been subject to prohibition in New York, which has led to various Courts undertaking an analysis of the constitutionality of the statute pursuant to the Second Amendment. Most recently, on September 25, 2019 a determination was made that a defendant should be afforded the right on appeal to be heard as to whether the statute “as applied to electronic stun guns” is unconstitutional (People v. Broadnax, 106 NYS3d 892 [2nd Dept 2019]). Furthermore, the Courts in New York have taken up matters similar in nature whereby a defendant was charged with Criminal Possession of a Weapon in the Fourth Degree as a result of an alleged possession of a gravity knife (People v. Buchholz, 53 Misc.3d 563 [City Ct Bronx County 2016]). In Buchholz, counsel for the defendant argued that the charges should be dismissed based upon the constitutionality of the law and specifically argued that such statute violates the defendant’s right to keep and bear arms under the Second Amendment. The Court found that the defendant did not “meet his heavy burden” and that the statute itself did not equate to a violation of the United States Constitution. Recently, a defendant also failed to successfully challenge the lawfulness of the same statute by overcoming the strong presumption of constitutionality (People v. Williams, 106 NYS 3d 738 [County Ct, Columbian County 2019]). Furthermore, when this portion of the Penal Law has come under scrutiny, New York courts have applied the “heavy burden” standard with the guidance set forth in federal case holdings to determine whether there was an infringement upon an individual’s Second Amendment rights. (People v. Williams, 106 NYS 3d 738 [County Ct, Columbian County 2019]. Therefore, based on the various challenges to PL§265.01(1) within the New York State courts, this Court must make further inquiry into the standard set forth by federal case law for guidance in making a determination as to the constitutionality of an adopted law, while also applying the high standard New York courts have mandated when a party is seeking to invalidate a statute. Federal Law, Constitutionality and Findings The defendant argues the statute under which the defendant is charged violates the Second Amendment of the United States Constitution as an absolute ban on stun guns is overly broad in nature, even upon consideration of public safety concerns. The defendant relies on the case of Avitabile v. Beach, 368 F. Supp.3d 404 [2019] and sets forth in his motion papers submitted that a “Judge in the Northern District of New York, which this court is located in, used the same reasoning to find that New York’s total ban on stun guns is unconstitutional. Therefore, this Court should dismiss the accusatory instrument charging Defendant with Criminal Possession of Weapon in the Fourth Degree”. The People oppose this argument on the basis that the statute, as enacted, was done so with consideration given to public safety and therefore should be deemed constitutional. The Court finds that although the decision relied upon by the defendant may be persuasive in nature, it is non-binding and does not absolve the defendant from his obligation to demonstrate the unconstitutionality of a statute based upon the applicable standard. Furthermore, it has long been held that a statute must only be stricken down “as a last resort, and only when unconstitutionality is demonstrated beyond a reasonable doubt” (People v. Scalza, 76 NY2d 604 [1990]; People v. Tiffany, 186 Misc.2d 917 [Crim Ct, New York County 2001]). In the matter of Avitabile, the individual who asserted that New York’s ban on stun guns is unconstitutional based his argument on the premise that it is an infringement of an individual’s Second Amendment right to obtain and possess these types of weapons as a means for self defense. Amongst other arguments, the State countered such assertion by arguing that despite the complete ban on stun guns, there were alternatives available which could be utilized for the purposes of self-protection. At the outset, upon applying the standard set forth in Heller, it is noted that although a weapon was not in existence at the time the Second Amendment was enacted, it can still be afforded the same protection as a “bearable arm”. However, subsequent cases have found that no prima facie case is established when the weapon is not one “in common use at the time”, “possessed at home”, and for “lawful purposes like self-defense” (Hollis v. Lynch, 827 F3d 436 [5th Cir 2016] citing Heller 128 S.Ct. 2783 at 627, 624) As such, while the weapon subject to this proceeding shall be considered a “bearable arm”, the Second Amendment protections and the benefits associated with an establishment of a prima facie case do not necessarily apply. As such, to determining if a particular weapon, or “bearable arm”, warrants Second Amendment protection, a two step-process analysis needs to be conducted consisting of the following: (1) is the weapon of common use and (2) is it typically possessed by law abiding citizens for lawful purposes. (District of Columbia v. Heller, 128 US 2783 [2008]; Maloney v. Singas, 351 F Supp 3d 222 [US Dist Ct, ED NY 2018]) It is only then, upon the Court making such findings, that the prima facie case is established and that a further analysis would then need to be conducted to determine if the statute regulating the particular weapons violates the Second Amendment protection. The Court in Avitabile found that a stun gun is one of “common use” and although an inherently difficult task, the plaintiff “solicited sales data from several electric arms companies” and the parties consented that there are at least “300,000 tasers and 4,478,330 stun guns owned by private citizens across the United States”. Secondly, the Court also found the plaintiff fulfilled the second prong of the required analysis in that it is typical for stun guns to be used for the lawful purpose such as self-defense. Based upon the meaningful and evidentiary showing, the Court found stun guns are to be afforded the special protections derived by the Second Amendment. The Court will note that this two-step analysis was also undertaken in a similar case when examining the legality of New York’s ban on the possession of “nunchaku” (Maloney v. Singas, 351 F3d 222 [US Dist Ct, ED NY 2018]) While the parties in the Maloney stipulated that nunchaku are bearable arms by definition, collectively there was submission from “sales data from six American nunchaku distributors which included data involving the sale of at least 64,890 metal and wood nunchakus which were sold to individuals along with data pertaining to nunchaku related crimes” to support the assertion that such devises were of common use. Furthermore, the Courts have consistently relied upon on statistical data in the post-Heller era in determining if a weapon is common or uncommon for the purposes of a Second Amendment analysis (Hollis v. Lynch, 827 F. Supp 3d 436 [5th Cir 2016]). As such, upon review and analysis of the submissions by the defendant, this Court finds there has been no evidentiary showing which would provide the proper authority to support the premise that a stun gun is a weapon of “common use” nor to support the premise that such devises are possessed by law abiding citizens for lawful purposes (People v. Ramirez, 64 Misc. 3d 644 [Crim Ct, City of New York 2019]). The Court will further note that the People have neither proffered any analytical data to the contrary. As such, there is no evidentiary basis to support a finding that the Second Amendment protections should be invoked nor has the defendant met the heavy burden necessary in demonstrating the underlying statute to be unconstitutional. The Court will also reiterate that the mere citation to a federal court case is not determinative and does not vacate the necessity for proof to be submitted supporting such a claim given the levity of the burden on the defendant in demonstrating the unconstitutionality of a statute enacted by the legislature of this State. Furthermore, “in passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court” (People v. Battease, 74 AD3d 1571 [3rd Dept 2010] citing State of New Jersey v. Coleman, 46 N.J. 16, 36, 214 A2d 393, 403 [1965]). Thereby, such determinations further support the Court’s finding that the underlying charge filed against the defendant should not be dismissed based upon record before this Court in this case. In light of the findings herein, this Court need not delve into nor make a determination as to the level of scrutiny to be applied when examining the constitutionality of New York State’s ban on stun guns. However, the Court will note that while some have argued that “strict scrutiny” is the appropriate standard when determining the constitutionality of a statute which infringes upon Second Amendment guarantees, courts have held that intermediate scrutiny should be applied (People v. Hughes, 22 NY3d 44 [2013]). In the event the Court was to examine the constitutionality of the statue subject to this proceeding, based upon invocation of Second Amendment protection, the People would have the affirmative obligation to demonstrate that such ban is “substantially related” to the achievement of public safety and preventing future crimes. (People v. Nivar, 30 Misc.3d 952 [Crim Ct, Bronx County 2011]). The Court finds that while the People make no assertions in regard to this argument, it need not be reached and is moot based upon the prior findings herein. Lastly, the defendant seeks an order granting leave to make such other and further motions as may deemed to be appropriate. The Court finds that pursuant to Criminal Procedure Law §255.20(3), the Court must entertain and decide on its merits, any motion which defendant could not reasonably have made as otherwise required by CPL §255(1), and furthermore the Court can consider any such motion at any time prior to sentence, for good cause shown. As the Criminal Procedure Law specifically provides for the relief requested by the defendant, defendant’s motion for an order allowing that relief is denied as unnecessary. As such, for the reasons set forth herein, the defendant’s motion to dismiss is hereby denied. So Ordered.
