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Appellate Division in the Second and Fourth Departments


A Queens Gun Crime Lawyer said that, defendant was indicted for the crime of Criminal Possession of a Weapon in the Third Degree. He has moved to dismiss the indictment on the ground that the prosecutor failed to instruct the grand jury that if defendant possessed the weapon in his home or place of business, the gun crime would be only that of criminal possession of a weapon in the fourth degree, a class A misdemeanor.

A Queens Criminal Lawyer said that, defendant is one of five incorporators and a director and manager of a not-for-profit corporation formed to sponsor domino games and hold domino competitions on the lower east side of Manhattan. He was arrested, while inside his club, in possession of a loaded pistol. He claims that his position as manager and director of the corporation entitles him to invoke the “place of business” exception provided in Penal Law § 265.02(4) as follows: “A person is guilty of criminal possession of a weapon in the third degree when (4) He possesses any loaded firearm. Such possession shall not, except as provided in subdivision one constitutes a violation of this section if such possession takes place in such person’s home or place of business.” The question of whether a not-for-profit corporation can be considered a “business” and whether it is the business of the manager or director so as to diminish his criminal liability are issues of first impression, certainly in New York and perhaps, nationwide.

The issue in this case is whether a social club a type of business exempted under the statute.
The legislative history of New York’s firearm control laws over the past fifteen years reveals a trend towards the increasing regulation of firearms and other dangerous weapon. The gun crime laws were amended in 1964 to include the “home or place of business” exception to N.Y. Penal Law 265.02. The provision, which merely reduces the charge of criminal possession of a weapon from a felony to a misdemeanor, is consistent with New York’s attempts to penalize unlawful possession of firearms, and stands in sharp contrast to the laws of other states. The Report of the New York State Joint Legislative Committee on Firearms and Ammunition reveals a legislative desire to “serious crimes before they occur” without infringing on “other valuable or worthwhile ends, such as training for national defense, the right of self-defense.” In 1964, when the gun laws were amended to include the home or place of business exception, the Committee reported, “In several significant respects the restrictions on firearms imposed by the New York statute exceed those of practically every jurisdiction. Only New York and a single other state (Hawaii), require a license to possess a pistol or revolver in one’s own abode, on one’s own property or in one’s place of business.”

Other states have created total exemption from criminal liability for persons who are found to possess unlicensed firearms in, among other places, their homes or places of business. Because other states make it lawful to possess unlicensed firearms in homes and places of business, it is likely that the courts in those states have construed their statutory exception more narrowly than the New York provision which merely reduces criminal liability.

It is true that, for the most part, New York courts at trial term have applied the “home or business” exception in a fairly broad manner and, for example, as pointed out so recently, has extended the business exception to include taxicabs and taxicab drivers. But the Appellate Division in the Second and Fourth Departments has endorsed a narrower construction of the provision in cases involving places of business.

In the case at bar, the property consists of “the normal fixture and furniture one would expect to find in a social club a juke box, its records.” Revenues involve fees collected for each domino tournament, and for the cost of running the club and for its maintenance. The club’s premises are not a location which involves substantial public access. In view of these facts, and bearing in mind the restrictive nature of New York’s gun laws, it would not appear that a gun is reasonably necessary to protect persons or property in this not-for-profit social club organized for the purpose of sponsoring domino competitions. Robbery was not charged.

Finally, though it may be arguable that “a place of business” could encompass a social or recreational or eleemosynary activity, the ordinary definition of “place of business” is “The place where a person earns his livelihood.” Thus, even the literal language of the New York “place of business” exception would seem to imply a construction of the criminal statute which would not extend to the facts of the case at bar. In any event, could defendant, as director and manager of a social club, be an owner or employee; could the club be his place of business?
Defendant although one of five incorporators of a not-for-profit corporation, relies upon his position as a director to place him within the business exception. As a director, defendant’s function is to manage the affairs of the corporation. It is the board, not the directors acting individually, who are vested with broad power to determine corporate policy and conduct corporate activities to the underlying membership, however, is reserved an approving function on issues which are basic to the corporation’s organizational integrity or legally related to the termination of its existence. In New York, the directors’ managerial powers may range from absolute to merely honorary, since there is no limitation on the members’ right to modify their directors’ powers (See New York Not-For-Profit Corporation Laws, sec. 701, providing that the corporation shall be managed by its board of directors “except as otherwise provided in the certificate of incorporation.”)

Title to corporate property is rightfully vested in the corporation itself. Defendant, as director and manager of the corporation, is thus acting as its agent and, although not an owner or proprietor, could broadly be considered an employee of the corporation. But can an employee claim the exemption? In a 1978, criminal defendant was an on-the-scene property manager of a used car lot. In holding that the trial court did not err when it instructed the jury that the District of Columbia “place of business” exception applied only to persons “with a controlling, proprietary or possessory interest in the premises,” the D.C. Court of Appeals said that “statute does not expressly–nor, we conclude, does it implicitly–create an exception allowing the person ‘in charge’ of premises to carry a pistol without a license. The exception refers to a proprietary or possessory interest, i. e., in ‘his dwelling house or place of business or on other land possessed by him.’ “Thus, the court concluded that the trial court was correct in stipulating that the exception does not cover employees, managers or other workers, unless they individually have a controlling, proprietary or possessory interest in the property. None of the New York cases has specifically addressed this question. They have generally assumed that an employee could fit within the language of the statutory exemption.

If an employee qualifies for the statutory exemption, must he nevertheless be authorized by his employer to possess a weapon? Again, the few decisions in point have divided on the issue of whether an employee needs authorization from his employer to carry a firearm on business premises in order to invoke the “place of business” exception. Some courts have applied the exception in the case of non-medallion (“gypsy”) cabs without consideration of whether there was evidence that the driver was the actual owner of the cab or, if not, whether authorization was given the driver. In one case, criminal evidence was presented by the State’s witness that the automobile operated by the criminal defendant was merely a “taxicab.” The court deemed this sufficient to trigger a response by the People that the place of business exception should not apply. In the said case, the court listed as a relevant factor in determining the application of the exception the “incidents of ownership or control over the area or object to be protected,” suggesting that the defendant need not necessarily be an owner in order to invoke the exception, but instead could be someone in control of the property. Shoplifting was not an issue.

In conclusion, the premises of a not-for-profit corporation, organized for the purpose of sponsoring domino competitions, does not constitute a “place of business” within the meaning of NYPL 265.02(4). In view of the strict regulation of firearms within this State, and the fact that a social club is not the kind of entity for which it is reasonable to believe that a gun is necessary to protect persons and property, the application of the “place of business” exception to the case at bar is not warranted.

Defendant, as a director and manager of the club, is probably, for purposes of NYPL 265.02(4), a person who could come within the statute: he is an agent of the corporation whose function is to manage its affairs, subject to the ultimate authority of the underlying membership which defines his powers. But as an employee of the corporation he is probably not entitled to invoke the exception without authorization from his corporate employer which was never established in this case. The prosecutor was thus not required to instruct the grand jury as to the place of business exception.

Accordingly, the court held that the defendant’s motion to dismiss the indictment is denied.
Are facing charges of criminal possession of a weapon? Seek the help of a Queens Arrest Attorney and Queens Possession of a Weapon Attorney at Stephen Bilkis and Associates. Call us now.

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