Defendant Javante Sovey is charged with two counts of criminal possession of a weapon in the second degree. Penal Law §§265.03(3); 265.03(1)(b). Citing District of Columbia v. Heller, 554 US 570 (2008), and NY State Rifle & Pistol Ass’n v. Bruen, 597 US ___, 142 S Ct 2111(2022), the defense now moves to dismiss the indictment, claiming these statutes violate the Second Amendment of the United States Constitution. For the reasons stated below, the motion is granted only to the extent of reopening the Mapp/Dunaway hearing to permit the defendant to provide any additional evidence with which to challenge his arrest for probable cause. On March 4, 2021, the defendant was arrested for possessing a loaded .45 caliber semiautomatic firearm with an extended magazine. The defendant was a front seat passenger in a car that was stopped because of its erratic movements on Madison Avenue. On March 9, 2021, a grand jury voted to indict the defendant under Penal Law sections 265.03(3) and 265.03(1)(b). The People charged the car presumption in the Grand Jury and presented no additional factual evidence supporting defendant’s intent to use the weapon unlawfully. See PL §265.15(4). On April 1, 2021, the defendant was arraigned in the supreme court, and subsequently the defense filed an omnibus motion to inspect the grand jury minutes and dismiss the indictment. At that time, the defense did not raise the Second Amendment claims made in this motion, but moved for a Mapp/Dunaway hearing on other grounds. On June 9, 2021, the court denied the motion to dismiss but granted the defendant’s motion for Mapp/Dunaway hearings. The court conducted the suppression hearings on November 23, 2021, January 26, 2022, and March 8, 2022. On April 18, 2022, the court issued a written decision denying suppression. On June 22, 2022, the United States Supreme Court issued its opinion in NY State Rifle & Pistol Ass’n v. Bruen, 142 S Ct 2111. On August 23, 2022, the defense filed this motion to dismiss the indictment, and “for such other and further relief as may be justified.” The defendant challenges his indictment under Penal Law §265.03, claiming the decision in Bruen renders a prosecution under the statute unconstitutional. The defense does not claim that Sovey obtained a valid New York State license or ever applied for one. Rather, the defense alleges that Sovey is a resident of Vermont where no license is required, and where he is able to legally purchase and maintain firearms. The defense also argues that but for New York State’s unconstitutional licensing law, Sovey would have been able to possess the firearm he is charged with possessing. The People oppose the defendant’s motion, arguing that the ruling in Bruen does not support the defense claim that the Penal Law statutes are unconstitutional, and that the defendant lacks standing to make the motion to dismiss the indictment. By letter dated October 4, 2022, the New York State Attorney General declined to intervene in this matter. See NY Executive Law §71; C.P.L.R. §1012 (b)(1). CONCLUSIONS OF LAW The defense is raising both a facial and as applied challenge to the entirety of Penal Law §265.03(3) and 265.03(1)(b). The defendant argues that Sovey’s standing claim need not rest on his having applied for a license because the whole of Penal Law §400.00 is unconstitutional on its face, citing case law in the realm of facial challenges to statutes. E.g. Staub v. Baxley, 355 US 313, 319 (1958). The court cannot accept this premise. First, the Court of Appeals has previously rejected a facial challenge to Penal Law §265.03 and held that this section applies to only unlicensed possession — not all possession — of firearms outside the home or place of business. See People v. Hughes, 22 NY3d 44 (2013). Second, as noted in other recent decisions, the Supreme Court in NY State Rifle & Pistol Ass’n v. Bruen, 142 S Ct 2111, did not invalidate all aspects of Penal Law §400.00. To the extent that the defense is attempting to argue that Penal Law sections 265.03(3) and 265.03(1)(b) are unconstitutional because Penal Law 400.00 et seq. is unlawful in its entirety, the claim is rejected. Accord, People v. Brown, 2022 NYLJ LEXIS 1051 (Sup Ct Bronx Co); People v. Rodriguez, NY Slip Op 22217 (Sup Ct, NY Co 2022); People v. Williams, 2022 NY Slip Op 22252 (Sup Ct Kins Co). The defense does not say why Penal Law §400.00(1) restrictions such as denying licenses to convicted felons are or would be unconstitutional. The claim that all prosecutions under Penal Law §265.03 became unconstitutional on June 22, 2002 is rejected. The as applied challenge The only ground on which the defendant’s motion has merit is the “as applied” challenge. The defendant contends that Penal Law §265.03(3) is being unconstitutionally applied to him because the Supreme Court struck down Penal Law §400.00(2)(f) — the concealed carry provision — which would have prevented him from obtaining a license. See Shuttleworth v. City of Birmingham, 394 US 147, 151 (1969). The court cannot summarily conclude, as the People argue based on the decision in United States v. DeCastro, 682 F3d 160 (2d Cir 2012), that the defendant lacks standing because he did not apply for a license and thereby subject himself to the New York licensing law. The ruling in Bruen compels the conclusion that an application by any person without a special need for concealed carry as defined in the law would have been futile. The defendant is in that category. Plaintiffs who challenge a statute directly on constitutional grounds (or challenge it post-conviction)1 are in a different posture than those, like Sovey, who is in the process of being prosecuted. There are more compelling reasons for requiring that litigants seeking a declaratory judgment first subject themselves to the challenged statute in order to attack it. That governing principle of the law of standing, guards against courts rendering advisory opinions and conserves judicial resources. See generally, Cuomo v. Long Is. Light Co., 71 NY2d 349 (1988). In Decastro, the Second Circuit acknowledged that litigants who have not subjected themselves to a challenged statute may still make a substantial showing that submitting to the statute would have been futile; the court cited its own precedent in Jackson-Bey v.Hanslmaier, 115 F3d 1091 (2d Cit 1997). The defendant in DeCastro, bringing the challenge post-conviction, failed to persuade the Second Circuit court that it would have been futile for him to apply for a New York license. The Second Circuit’s futility analysis, however, and ultimately its reason for rejecting the defendant’s standing claim, rested on its finding that the New York licensing requirements, including the special need provision, did not violate the Second Amendment,. The court reached this conclusion by reading District of Columbia v. Heller, 554 US 570, narrowly. See United States v. Decastro, 682 F3d at 164. Now however, the Supreme Court has rejected the Second Circuit’s restrictive reading of Heller and analyzed the scope of that case differently in the NY State Rifle & Pistol Ass’n v. Bruen decision. The key difference between the instant case and other recent post-Bruen challenges to prosecution under Penal Law §265.03, is that Sovey has made at least a facial showing that he could have legally possessed a gun but was thwarted by the unconstitutional licensing requirement. Compare People v. Brown, 2022 NYLJ LEXIS 1051 (“Defendant also does not allege any facts supporting an argument that he would have been able to satisfy all aspects of the Sullivan Law’s licensing requirements “); People v. Williams, 2022 Slip Op 22252 (“defendant has not shown that he could have overcome the constitutionally permissible restrictions in the licensing provisions “). Sovey has no criminal history in New York State. Through his attorney, he asserts he is a Vermont resident2 and residents of that state may possess a firearm without having a license. The defendant has made a colorable claim of standing and has preserved that claim by moving to dismiss the indictment on grounds that were not available to him at the inception of the case. Because of the intervening decision in NY State Rifle & Pistol Ass’n v. Bruen, 142 S Ct 2111, Sovey has satisfied the condition precedent articulated by the court in People v. Plummer, 983 A2d 323 (DCC 2009) (the “Plummer test”). Sovey need not have made a certainly futile application for a concealed carry license. He should not be prosecuted if he is able to demonstrate, as the defense alleges, he would have met the remaining constitutional standards for gun possession. See e.g. Magus v. United States, 11 A3d 237 (DCC2011), citing Plummer v. United States, 983 A2d 323 (DCC 2009). See also Headspeth v. District of Columbia, 53 A3d 305 (DCC 2012). The Supreme Court has cautioned that the Second Amendment, like most rights, is not unlimited. District of Columbia v. Heller, 554 US 570 at 626. Analogical reasoning under the Second Amendment is “neither a regulatory straightjacket nor a regulatory blank check.” NY Rifle & Pistol Ass’n v. Bruen, 142 S Ct at 2133. While the Supreme Court invalidated the requirement in New York’s licensing statute that an applicant have a special need to carry a concealed weapon, it did not strike down or comment on the other requirements for concealed carry in New York, notably those codified in Penal Law §400-(1) (c-e)(making an applicant ineligible if they have been previously convicted of a felony offense, if they are subject to a fugitive warrant or addicted to a controlled substance). See People v. Rodriguez, 2022 NY Slip Op 22217 (Sup Ct NY Co). The categories of individuals excluded under these important subsections are generally not the “ordinary law abiding citizens” whom the Supreme Court found may carry their concealed weapons in public. If what discouraged and prevented the defendant from applying for an receiving a license was its unconstitutional “special need” provision, that is one thing. If he would have been disqualified based on another part of the statute, then it is another, and then he may continue to be prosecuted for unlawfully possessing the firearm under Penal Law §265.03. This court acknowledges it may be difficult to make a determination of whether a defendant is an “ordinary, law abiding citizen,” and that such a determination may also require a sensitive location analysis. See People v. Brown, 2022 NYLJ LEXIS 1051 (Sup Ct Bx Co.). But justice begins in the trial courts, and it is incumbent on those courts to apply the ruling in Bruen in what is a rapidly changing legal landscape.3 If a trial court fails to make a required factual finding, a case may need to be remitted later for that finding. See CPL §470.15; People v. Concepcion, 17 NY3d 192 (2011); People v. LaFontaine, 92 NY3d 470 (1998). Even in circumstances where a defendant asserts Plummer standing, a hearing should not be automatically granted. Rather, the court should look to factual sufficiency and reference the context of the motion and the information available to the defendant. See People v. Mendoza, 82 NY2d 415 (1993). In this case, the defendant has raised sufficient factual claims to require a hearing on whether a New York license was unavailable to him solely because of the defunct, special need requirement. The defendant’s ‘as applied’ challenge is a question of whether there was probable cause to arrest him and thus implicitly, an application to reopen the Dunaway hearing. See Dunaway v. New York, 442 U.S. 200 (1979). The People have the initial burden of production at a suppression hearing to provide evidence that the police conduct was legal. People v. Chipp, 75 NY2d 327 (1990); People v. Whitehurst, 25 NY2d 389, 291 (1969). Once the People have met their burden, the defendant has the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the evidence. People v. Berrios, 28 NY2d 361 (1971). The People have previously met their burden by demonstrating that the defendant was not licensed, and was concealing a loaded, unlicensed pistol on his person. It will be defendant’s ultimate burden in the reopened hearing, to show that he was an “ordinary, law-abiding, adult citizen” like the plaintiffs in NY Rifle & Pistol Ass’n v. Bruen, 142 S Ct at 1134, and would have been able to obtain a license for his weapon but for the unconstitutional aspect of the licensing statute. CONCLUSION The defendant’s motion is granted in part as noted above. The reopened Dunaway hearing will be continued on a date to be determined. This shall constitute the decision and order of the court. Dated: November 1, 2022
