# People v. Jianqiao Lu > New York Supreme Court, Westchester County · November 27, 2023 · 2023 NY Slip Op 34736(U) URL: https://www.frixlaw.com/law-library/cases/10752970 ## Case - **Court:** New York Supreme Court, Westchester County - **Decided:** November 27, 2023 - **Citations:** 2023 NY Slip Op 34736(U) - **Precedential status:** Unpublished - **Opinion:** Opinion by Robert A. Neary - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10752970 ## Opinion text 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 State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. i_ "'-:lo- ~. . J •.-' ,-of .., ·.,-,A- -.'1_ ,.. ;" ,,_ I t 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 Page 4 [* 4] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10752970. Public record. Not legal advice.