The opinion
People v Jianqiao Lu
2023 NY Slip Op 34736(U)
November 27, 2023
Supreme Court, Westchester County
Docket Number: Ind. No. 23-70515-001
Judge: Robert A. Neary
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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This opinion is uncorrected and not selected for official
publication.
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FILED
AND
ENTERED
ON/l-~1- 202.1·
WESTCHESTER
COUNTY CLERK
SUPREME COURT OF THE STATE OF NEW YORK ·
COUNTY OF WESTCHESTER .
------ _-------------------------- ·______________________· ---------X
THE PEOPLE OF THE STATE OF NEW YORK
- against - DECISION AND ORDER
JIANQIAO LU,· Ind. No. 23-70515-001
. Defendant.
___· --- ----------------------------------------------------------X
NEARY, J.
The defendant moves, pro se, for a "rehearing" of a previously decided motion on
· the grounds that the previous motion contained legal defects which wo~ld effect his rights on
appeal. To the extent that the defendant's papers can be viewed as a motion to reargue, the
motion is denied.
. f'i(·•.
FILED
NOV 2· 7 2023
1
, ,..,. J;UNI
... ,.i :1iiY CLERK
'l
·\
CG,~;ii t OF WESTCHESTER
[* 1]
People v. Jianqiao Lu
Indictment No. 23-70515-001
·A motion to reargue is goveme_d by CPLR §2221 (d) and must be based on a
showing that the court overlooked or misapprehended the facts or the law in its prior
determination. [See New York Cent. Mut l~s. Co. v. Davalos, 39 AD3d 654 (2 nd Dept. 2007)].
A motion for leave to reargue "shall be based upon matters of fact or- law
allegedly overlooked or misapprehended by the court in determining the prior motion, but shall .
not include ariy matters of fact not offered on the prior motion." [See CPLR §2221(d)(2)]. ·A
motion for leave to reargue "is not_ designed to provide an unsuccessful party with successive
opportunities to reargue issues previously decided, or to present arguments different from those
originally presented." [See McGill v. Goldman, 261 AD2d 593 (2 nd Dept. 1999)]. Since the
motion to reargue must "be based upon matters of fact or law allegedly overlooked or
misapprehended," its purpose is to of~er the unsuccessful party an opportunity to persuade the -
court to change its decision, not provide a second chance to more strenuously advance its
argument or present an argument that it initially did not. In the present case, the defendant is
seeking to advance new arguments not presented in his prior motion. The motion is, therefore,
denied on that basis.
To the extent that the defendant's papers can be viewed as a request to file an entirely
new motion to dismiss, it must be denied. CPL §255.20(1) cJeaily states that ''except as
otherwise
.
expressly
. provided by law, whether the defendant is represented by _counsel or elects
to proceed prose, all pre-trial motions shall be served and filed within forty-five (45) days after
arraignment and before commencement of trial, or within such additional time as the court inay
fix upon application of the defendant made prior to entry of judgment. The motion is untimely
Page 2
[* 2]
.
People v. Jianqiao Lu
Indictment No. 23-70515-001
and the Court finds no basis to enlarge the time requirement in ~ight of the two (2) previously
filed motions.
In any event, after reviewing the defendant's papers, the Court finds no merit to
the defendant's arguments and, therefore, no basis to permit further submissions on this matter.
The Court's dedsion in the previous motion found that the defendant it not entitled to dismissal
of the charges on the theory that the statues under which he is charged are unconstitutional.
Moreover, the Supreme Court decision in Bruen does not confer upon residents ofNew York an
absolute or unfettered right to firearms and large capacity ammunition feeding devices in their
homes. The United States Supreme Court did not invalidate New York's pistol licensing scheme
in its entirety, it merely found that the "proper cause standard" it previously applied when
applicants sought to carry concealed weapons for the purpose of self-defense was violative of the
Fourteenth Amendment. [See·Bruen, 142 S. Ct. a_t 2156). Specifically, the Bruen court found
· this standard "prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising
their right to keep and bear arms" by requiring them to "demonstrate to the government officers
l
some special need" to do so. [See Bruen, 142 S. Ct at 2156].
The defendant's contention that the Bruen decision invalidates Article 265 of the
Penal Law is without merit. The Appellate Division, Second Department has opined that "[t]he
ruling in Bruen had no impact on the constitutionality ofNew York State's criminal possession
of a weapon statutes." [See People v. Manners, ·217 AD3d 683 (2 nd Dept. 2023), citing People v.
Williams, 78 Misc.3d 1205(A) (Sup. Ct., Erie County 2023); P_eople v. Joyce,_ AD3d _, 2023
NY App. Div. LEXIS 4243 (2 nd Dept. 2023); see also People v. Adames, 216 AD3d 519 (!51
Page 3
[* 3]
A •
People v. Jianqiao Lu
Indictment No. 23-70515-001
Dept. 2023) (finding B;uen djd not rend~r Penal Law §265.03(3) unconstitutional); People v.
Quiles, 217 AD3d 635 (l5 1 Dept..2023)].
i:he statutes under which the defendant is charged are clearly constitutional. His
attempts to modify the argument to raise an unconstitutional "as applied"_issue are utterly·
without merit.
The defendant's motion is, therefore, denied.
'
This constitutes the opinion, decision and order of this Court.
Dated: White Plains, New York .
November 27, 2023
ROBERT A. NE
SUPREME COURT JU
Catalina Blanco Buitrago
Annmarie Stepancic
Assistant District Attorneys
Westchester County
Office of the District Attorney
Richard J. Daronco Courthouse
111 Martin Luther King Blvd.
White Plains, New York 10601
cblancobuitrago@westchesterda.net
Jianqiao Lu
Inmate No. 265008
Por Se Defendant
Westchester County Jail
PO Box 10
Valhalla, New York 10595
lu@luvrocah.com
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[* 4]