People v. Wallace

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered May 8, 2014. The judgment convicted defendant, after a nonjury trial, of criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree, a class C felony (Penal Law § 265.03 [3]). The evidence established that defendant brought a loaded, operable, unlicensed handgun to work with him as a swing manager at McDonald’s and that he accidentally shot himself in the leg while in the lobby area of the restaurant. Defendant argues that he should fall within the exception set forth in the subdivision, which provides that possession constitutes only a misdemeanor if it takes place in a person’s “place of business” (id.; see § 265.01 [1]).

Although defendant’s motion for a trial order of dismissal was not specifically directed at the legal sufficiency of the evidence based upon the “place of business” exception, inasmuch as he unsuccessfully argued that issue before trial, defendant need not “repeat the argument in a trial motion to dismiss in order to preserve the point for appeal” (People v Finch, 23 NY3d 408, 410 [2014]). Nevertheless, the contention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although the “place of business” exception is not statutorily defined, it has been “construed narrowly by the courts in an effort to balance ‘the State’s strong policy to severely restrict possession of any firearm’ . . . with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access” (People v Buckmire, 237 AD2d 151, 151 [1997], lv denied 90 NY2d 902 [1997]; see People v Francis, 45 AD2d 431, 434 [1974], affd on other grounds 38 NY2d 150 [1975]; People v Fearon, 58 AD2d 1041, 1041 [1977], cert denied 434 US 1036 [1978]). Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor “would certainly controvert the meaning and intent of the statute” (Fearon, 58 AD2d at 1041).

All concur except Lindley, J., who dissents and votes to modify in accordance with the following memorandum.