This proceeding is an application by the defendant probationer through the Probation Department, for a limited certificate of relief from disabilities pursuant to Correction Law § 702 which would authorize him to apply for hunting licenses and use long gun solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons.
The defendant has completed his community service with high praise from the office where he had worked and is a first time offender who would otherwise be eligible for a CRD pursuant to Correction Law § 700. He continues to serve his probationary sentence.
This application for a CRD requires the court to consider three federal criminal statutes, contradictory United States Court of Appeals decisions, contradictory New York lower court decisions, and novel issues apparently not decided by any court.
On 22 February 1997, the defendant, after a parental visit, brought his children directly to his then wife, now former wife, in contravention to a court order of protection. Thereafter, a verbal and physical confrontation occurred between the defendant and his wife. The COOP provided that the defendant was to return his children to the local police station. The defendant was indicted and tried for crimes involved in this incident and another. On 24 March 1999 after a jury trial, the defendant was found guilty of assault in the second degree (Penal Law § 120.05 ), two counts of assault in the third degree (Penal Law § 120.00 ), and two counts of criminal contempt in the first degree (Penal Law § 215.51 [b] [v], [vi]).
After trial and prior to sentence, defendant successfully moved this court to set aside the guilty verdicts as to all assault counts. The court held that the evidence adduced at trial was devoid of legal sufficiency to support the verdict finding that the defendant caused physical injury to his former wife and former father-in-law. On 15 September 1999, the defendant was sentenced on the criminal contempt in the first degree convictions to five years’ probation and included, as a special condition, 500 hours of community service. The court also issued a COOP which is to expire on 14 September 2004.
New York bars the issuance to or renewal of a firearm license to a person who has been convicted of a “felony” under Penal Law § 400.00 , , Penal Law § 10.00  and Penal Law § 265.00 .
This statutory bar applies to firearms as defined in Penal Law § 265.00 (3). Penal Law § 265.00  [c] states that a rifle is not a firearm unless one of the barrels is less than sixteen inches in length. Thus, there is no prohibition against a felon or a person who is under a COOP from possessing a hunting rifle in accordance with CPL 530.14, Penal Law § 400.00 ,  and Matter of Alarie. Therefore, a CRD is not necessary for the possession of a hunting rifle under New York State law.
18 USC § 922 [g]  states that it is unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce any firearm or ammunition, or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The term ‘firearm’ means any weapon including a starter gun which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. The term “firearm” includes hunting rifles.
The court must now determine what possession “in or affecting commerce” means.
Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce as held in United States v Lopez. In the same case it was held that where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.
Since the defendant has been convicted of a felony, he is subject to the provisions of 18 USC § 922 (g) (1).
18 USC § 921 (a) (20) provides for an exception to the felon-in-possession prohibition and an exception to that exception known as the “unless” clause. 18 USC § 921 (a) (20) removes the status of felon for purposes of felon-in-possession gun possession crime if the conviction has been expunged or, as critical in this case, the state has restored a felon’s civil rights. The determination of whether a state has restored a felon’s civil rights is determined by the law of the state of conviction. The state need not restore all civil rights, but must “substantially” restore a felon’s rights. While the statute does not define the core civil rights, federal courts have defined the three core civil rights as the right to vote, the right to serve on a jury and the right to hold public office. The court holds that if a felon never lost the civil rights, then the felon could never have them restored.
The court is then tasked to determine what civil rights are lost in New York by a felon, and then, if these rights can be restored by a CRD.
Under Civil Rights Law § 79 (1), a convicted person who is incarcerated for a day or longer in a state correctional institution loses all civil rights during the period of incarceration. Once an incarcerated convicted person is released some of the civil rights are restored. In this case, the defendant was never incarcerated. Thus, Civil Rights Law § 79 (1) does not apply to him.
Under Correction Law § 701, the issuance of a CRD relieves a convicted person of the automatic bar from serving on a jury. It does not, however, restore the right to serve on the jury. The determination whether a defendant is eligible for jury service is made by the commissioner of jurors not the court.
The court holds that the CRD is not a document restoring civil rights. The CRD is legally insufficient to permit weapon possession by a former felon. The document restoring a defendant’s rights must restore also the defendant’s right to possess all weapons.
18 USC § 921 (a) (20) further states that a restoration of civil rights is effective unless such pardon, expungement provides that the person may not possess, or receive a firearm. In effect the statute provides that even if a felon should have all civil rights restored, that is insufficient to comply with the exemption if the document restoring those rights prohibits possession of a weapon.
In Caron v United States, the Court held that under the “unless” clause, if a state permits possession of a limited class of firearms, but prohibits possession of a different class of firearms, then the felon may not possess any firearm including those that the state permitted. In order to qualify for the exemption to the felon-in-possession prohibition, the felon must have all core civil rights restored and must be authorized to possess all types of firearms.
In the case at bar, the defendant is ineligible to possess certain firearms pursuant to Penal Law §§ 265.00, 400.00 ). Thus, unless a CRD relieves a defendant of all firearm restraints, then a felon would be prohibited from possessing any firearm.
Correction Law § 701 (1) permits a court to relieve an eligible offender of all forfeitures. The statute does not limit the forfeitures except possibly to certain persons to retain certain offices.
The purpose of the CRD is to effectuate the public policy to encourage the licensure and employment of convicted individuals. Once issued, a CRD creates a presumption of rehabilitation. While the CRD creates a presumption of rehabilitation and removes the automatic bar from obtaining a license, it does not establish a prima facie entitlement to the license. The licensing agency still maintains the ultimate control whether to grant the license.
The court finds that it has the right to eliminate the automatic forfeiture of the right to a pistol or gun license. However, the CRD will not eliminate the firearm disability that must be done by the licensing agency. Thus, the CRD in effect authorizes a felon to apply to the licensing agency. The licensing agency cannot automatically deny the right to the license, but may do so in its discretion. The CRD “restores” the felon’s civil rights, but continues the bar of possessing a weapon until the licensing agency authorizes possession. As such the “unless” clause of 18 USC § 921 (a) (20) comes into effect because in New York the document restoring the civil rights also contains a bar to possession of a weapon.
The court holds that even if the court were to issue a CRD and the licensing agency permitted the possession of all firearms, the defendant’s possession of a weapon that at some time traveled in interstate commerce would constitute a federal crime.
The court holds that it is barred from granting the defendant’s request, or, if not prevented by law, should not perform a useless act.
It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to possess in or affecting commerce, any firearm. `Misdemeanor crime of domestic violence’ means an offense that (i) is a misdemeanor under Federal or State Law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse.
In this case, the court vacated the assault in the third degree conviction because the People failed to make out a prima facie case that the victim suffered “physical injury.” CPL 330.50 (1) requires a court upon setting aside a verdict to take the same action as the appropriate appellate court. CPL 470.15 (2) (a) provides that when an appellate court determines that the trial evidence is not legally sufficient to support the verdict for a particular offense, but is sufficient to support a lesser included offense, then the appellate court may reduce the conviction to the lesser included offense.
In this case, the court should have reduced the defendant’s conviction to the lesser included offense of attempted assault in the third degree, a misdemeanor. Attempted assault in the third degree would qualify under the federal statute as a domestic violence misdemeanor.
Because of this error, the court, in determining whether to issue the CRD, will consider the defendant as if he were convicted of a domestic violence misdemeanor.
In this case, the defendant has been convicted of a felony. If the CRD could restore the civil rights of a felon, then it would automatically restore the civil rights lost as a result of the misdemeanor conviction. However, as stated in the felon-in-possession section, the CRD contains a limitation on the possession of a weapon. Thus, the “unless” clause prohibits weapon possession, and the CRD does not restore the right to serve on a jury.
A defendant in New York who has only been convicted of a domestic violence misdemeanor is ineligible for a CRD which would restore the right to possess any type of weapon.
18 USC § 922 (g) (8) bans gun possession for those subject to a protective order. This statute contains three elements: (1) an order of protection preceded by a hearing and notice containing certain restrictions and findings; (2) knowing possession of a firearm; and (3) possession affecting interstate commerce as held in United States v Bostic. The elements of knowing, possession, and interstate commerce are identical to what this court has stated for the felon-in-possession statute.
In United Sates v Calor, it was held that the element of hearing and notice is fulfilled when a defendant has had an opportunity to participate and be heard in the determination of the issuance of the protective order.
In this case, the defendant was present at sentencing, was aware that the court could issue a COOP (CPL 530.12), and was asked if he or his counsel wished to say anything. Further, defense counsel was given the opportunity to read the probation report, which contained a request by the victim for a COOP. The requirement of hearing and notice was fulfilled.
The defendant, for as long as the COOP is in effect, is barred by 18 USC § 922 (g) (8) from possessing a firearm, including a hunting rifle.
The possession of a gun is a main factor that significantly increases the risk of homicide. The court notes that guns and domestic violence are often a deadly combination. As in this case, the court learned of other times that the defendant acted violently against the victim. The Probation Department recommends against issuing the CRD. The probation report indicates prior acts of violence against the defendant’s children.
If the case was solely left to the court’s discretion, it would decline to grant the certificate of relief of civil disabilities that would permit the probationer to apply for hunting licenses and use long gun solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons.
The court denies the application to the extent that the defendant requests permission to apply for a hunting license and to possess and use a rifle. The court, however, grants probationer a CRD for employment purposes only.
New York Gun Crime Lawyers or New York Gun Possession Lawyers at Stephen Bikis & Associates may be contacted through our toll free number or may be visited at our firms near you. If you have questions regarding this case and you find yourself faced with the same legal issues, a team of experts will gladly answer your queries to help you through your ordeal.