Petition for Writ of Certiorari — Melquan Tucker, Petitioner v. New York

APPENDIX

App-1

APPENDIX A — DECISION AND ORDER

OF THE SUPREME COURT OF NEW YORK,

APPELLATE DIVISION, FOURTH DEPARTMENT,

DATED JANUARY 31, 2020

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

864

KA 18-00147

PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, AND NEMOYER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK,

RESPONDENT,

V.

MELQUAN TUCKER,

DEFENDANT-APPELLANT.

OPINION AND ORDER

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS

OF COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H.

BRANDT OF COUNSEL), FOR RESPONDENT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DENNIS A. RAMBAUD OF

COUNSEL), FOR INTERVENOR-RESPONDENT.

App-2

Appeal from a judgment of the Supreme Court, Erie County (Russell P.

Buscaglia, A.J.), rendered January 8, 2018. The judgment convicted defendant,

upon a jury verdict, of criminal possession of a firearm.

It is hereby ORDERED that the judgment so appealed from is unanimously

affirmed.

Opinion by Peradotto, J.:

We conclude that New York’s criminal prohibition on the possession of a

handgun in the home without a license, as applied to defendant, does not violate the

Second Amendment of the Constitution of the United States.

I

Upon executing a no-knock search warrant, police officers entered a residence

in which defendant and other people were present. While searching a bedroom, the

police discovered a gun box in the closet containing a revolver, two cylinders, and

ammunition. The police also discovered in that bedroom, among other things,

defendant’s driver’s license and a bottle of medication prescribed to defendant. Later

DNA testing also connected defendant to the revolver. It is undisputed that defendant

did not have a license to possess a handgun, and defendant does not claim that he

had applied for one. Additionally, when the police first entered the residence, another

officer positioned outside had observed the codefendant jump from a first floor

window of another bedroom and saw numerous baggies, later determined to contain

App-3

heroin, fall from the codefendant’s person. The police also seized a small digital scale

from the kitchen of the residence.

Defendant and the codefendant were charged by joint indictment with criminal

possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), and

defendant was separately charged in the indictment with criminal possession of a

firearm (§ 265.01–b [1]). Defendant moved to dismiss the criminal possession of a

firearm charge on the ground that the charge is unconstitutional as applied to him

because it violates his right under the Second Amendment to possess the revolver in

his home for self-defense. Defendant notified the Attorney General of the State of

New York pursuant to Executive Law § 71 that he was challenging the

constitutionality of Penal Law § 265.01–b (1). The People opposed the motion, and

defendant replied in further support of his constitutional challenge. Supreme Court

denied the motion.

Following trial, the jury rendered a verdict finding defendant guilty of criminal

possession of a firearm (Penal Law § 265.01–b [1]) but acquitting him of the drugrelated charge. Defendant now appeals, raising as his primary contention that the

court erred in denying his motion to dismiss the charge of criminal possession of a

firearm because, as applied to him, criminal prosecution under the statute for

possession of an unlicensed firearm violates his right under the Second Amendment

to possess the revolver in his home for self-defense. We note at the outset that the

issue before us does not involve a challenge to any particular provision of the licensing

requirement; instead, the central question is whether New York may constitutionally

App-4

impose any criminal sanction whatsoever on the unlicensed possession of a handgun

in the home.

II

New York has a long history of regulating the possession of firearms by persons

within the state, particularly by way of a licensing requirement. In the latter part of

the nineteenth century, the legislature enacted a law prohibiting any person under

18 years old from “hav[ing], carry[ing] or hav[ing] in his possession in any public

street, highway or place in any city” a pistol or firearm of any kind without a license

from a police magistrate of such city and making the violation thereof a misdemeanor

(L. 1884, ch. 46, § 8; see also L. 1883, ch. 375). In 1905, the legislature amended the

law to prohibit any person over 16 years old from carrying a concealed firearm in any

city or village without a license and to further prohibit any person from selling or

otherwise providing any pistol, revolver or other firearm to a person under 16 years

old (see L. 1905, ch. 92, §§ 1, 2).

As has been recounted in prior cases (see e.g. Kachalsky v. County of

Westchester, 701 F.3d 81, 84–85 [2d Cir.2012], cert. denied 569 U.S. 918 [2013]),

following an increase in shooting homicides and suicides committed with revolvers

and other concealable firearms during the early twentieth century, as reported in a

coroner’s office study, the legislature enacted the Sullivan Law to address the rise of

violent crimes associated with such weapons (see id.; People ex rel. Darling v. Warden

of City Prison, 154 App. Div. 413, 422–423 [1st Dept. 1913]; Revolver Killings Fast

Increasing, N.Y. Times, Jan. 30, 1911, at 4, col 4). The law made it a misdemeanor to

App-5

possess without a license “any pistol, revolver or other firearm of a size which may be

concealed upon the person” “in any city, village or town of th[e] state” (L. 1911, ch.

195, § 1). Although the First Department, in rejecting a challenge to the law shortly

after its passage, relied in part on the now-repudiated basis that the Second

Amendment does not apply to the states (see Darling, 154 App. Div. at 419), the court

also reasoned that the right conferred by statute (see Civil Rights Law § 4; People v.

Perkins, 62 A.D.3d 1160, 1161 [3d Dept. 2009], lv. denied 13 N.Y.3d 748 [2009]) was

not violated by the law inasmuch as the legislature had “passed a regulative, not a

prohibitory, act” in the proper exercise of its police powers to promote the safety of

the public (Darling, 154 App. Div. at 423). The First Department noted that prior

state laws regulating the carrying of concealed weapons had not “seem[ed] effective

in preventing crimes of violence” and that the legislature had therefore determined

to proceed “a step further with the regulatory legislation” concerning licensing in

order to prevent criminals from possessing handguns (id.).

The law was subsequently amended and recodified, and today New York

maintains its criminal prohibition on the possession of certain firearms, including

pistols and revolvers, without a valid license, even if such firearms remain in one’s

home (see Penal Law §§ 265.00[3]; 265.01[1]; 265.01–b [1]; 265.20[a][3]).

III

The Second Amendment provides that “[a] well regulated Militia, being

necessary to the security of a free State, the right of the people to keep and bear Arms,

shall not be infringed.” The Supreme Court of the United States has held that the

App-6

amendment confers an individual right to keep and bear arms for lawful purposes,

such as self-defense in the home (see District of Columbia v. Heller, 554 U.S. 570

[2008]), and that the right is fully applicable to the states (see McDonald v. City of

Chicago, 561 U.S. 742 [2010]). The Court held that self-defense is the central

component of the Second Amendment right and stated that “the need for defense of

self, family, and property is most acute” in the home and that handguns are “the most

preferred firearm in the nation to keep and use for protection of one’s home and

family” (Heller, 554 U.S. at 628–629 [internal quotation marks omitted]; see id. at

599; see also McDonald, 561 U.S. at 767). The Court thus struck down laws that

effectuated complete bans on in-home possession of handguns (see McDonald, 561

U.S. at 791; Heller, 554 U.S. at 635).

The Court also recognized, however, that “the right secured by the Second

Amendment is not unlimited” and has never been understood as allowing one “to keep

and carry any weapon whatsoever in any manner whatsoever and for whatever

purpose” (Heller, 554 U.S. at 626; see generally Robertson v. Baldwin, 165 U.S. 275,

281–282 [1897]). The Court made clear that its holdings “did not cast doubt on such

longstanding regulatory measures as ‘prohibitions on the possession of firearms by

felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive

places such as schools and government buildings, or laws imposing conditions and

qualifications on the commercial sale of arms’ “ (McDonald, 561 U.S. at 786, quoting

Heller, 554 U.S. at 627–628). Such “presumptively lawful regulatory measures” were

App-7

offered “only as examples” rather than as an exhaustive list (Heller, 554 U.S. at 627

n. 26).

In light of the lack of detailed guidance offered in Heller and McDonald

regarding the manner in which Second Amendment challenges to firearms legislation

should be evaluated, the courts began to develop an analytical framework for

reviewing such challenges (see generally New York State Rifle & Pistol Assn., Inc. v.

Cuomo, 804 F.3d 242, 252–254 [2d Cir.2015], cert. denied ––– U.S. ––––, 136 S.Ct.

2486 (2016)). Appellate courts, including the Court of Appeals, have generally applied

or taken an approach consistent with a two-step analysis in which they first “

‘determine whether the challenged legislation impinges upon conduct protected by

the Second Amendment’ “ and, if so, they then “determine the appropriate level of

scrutiny to apply and evaluate the constitutionality of the law using that level of

scrutiny” (United States v. Jimenez, 895 F.3d 228, 232 [2d Cir.2018]; see e.g. People v.

Hughes, 22 N.Y.3d 44, 51, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013]; New York State Rifle

& Pistol Assn., Inc., 804 F.3d at 254 and n. 49 [citing cases using a two-step

approach]).

IV

On this appeal, defendant contends that the court erred in denying his motion

to dismiss the criminal possession of a firearm count (Penal Law § 265.01–b [1])

because New York’s criminal prohibition on the possession of a handgun in the home

without a license, as applied to him, violates his right under the Second Amendment.

Although defendant mentions that Penal Law article 265 allows for prosecutorial

App-8

discretion in these circumstances to determine whether to pursue a class E felony (see

§ 265.01–b) or a class A misdemeanor (see § 265.01; see generally William C. Donnino,

Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 265.01

at 106 [2017 ed.]), that is not the premise of his challenge (cf. People v. Eboli, 34

N.Y.2d 281, 284 [1974]); nor does this case involve a constitutional challenge to the

licensing requirements or process upon a denial or revocation of such a license (cf.

Matter of Delgado v. Kelly, 127 A.D.3d 644, 644 [1st Dept. 2015], lv. denied 26 N.Y.3d

905, 2015 WL 5445688 [2015] ). Rather, defendant contends that New York may not

constitutionally impose any criminal sanction whatsoever on the unlicensed

possession of a handgun in the home. According to defendant, that criminal

prohibition should be subjected to strict scrutiny because it implicates conduct at the

core of the Second Amendment and cannot withstand such scrutiny. The People

respond that defendant’s contention is without merit. The Attorney General, as

intervenor, responds that defendant’s challenge fails at step one of the analysis and

that, even at step two, an intermediate level of scrutiny would apply and the criminal

prohibition on unlicensed possession of a handgun in the home would survive such

scrutiny.

The Attorney General presents arguments for rejecting defendant’s challenge

at the first step of the analysis based on the longstanding nature of New York’s

criminal prohibition relative to the presumptively lawful regulatory measures listed

as examples in Heller and the historical and traditional justifications for regulating

firearm possession (see e.g. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol,

App-9

Tobacco, Firearms, and Explosives, 700 F.3d 185, 196–197 [5th Cir.2012], cert. denied

571 U.S. 1196, 134 S.Ct. 1364, 188 L.Ed.2d 296 [2014]; Heller v. District of Columbia,

670 F.3d 1244, 1253–1255 [D.C. Cir.2011] [Heller II]; United States v. Skoien, 614

F.3d 638, 640–641 [7th Cir.2010], cert. denied 562 U.S. 1303 [2011]; see generally 1

William Blackstone, Commentaries on the Laws of England at 139–140 [1765]).

However, we need not address that issue here because, even assuming, arguendo,

that defendant’s challenge advances beyond the first step of the analysis, we conclude

that New York’s criminal prohibition passes constitutional muster under Second

Amendment scrutiny at the second step (see generally Jimenez, 895 F.3d at 234).

Specifically, we conclude for the reasons that follow that, contrary to defendant’s

contention, the appropriate level of scrutiny is intermediate and the criminal

prohibition on the possession of a handgun in the home without a license withstands

such scrutiny.

With regard to the appropriate level of scrutiny, the Court of Appeals in

Hughes considered the defendant’s challenge to his conviction of criminal possession

of a weapon in the second degree stemming from his unlicensed possession of a

handgun in the home. The defendant’s challenge was on the ground that the

inapplicability of the home exception due to his prior misdemeanor conviction (see

Penal Law §§ 265.02[1]; 265.03[3]), which effectively elevated his criminally culpable

conduct from a class A misdemeanor to a class C felony, infringed upon his Second

Amendment right (22 N.Y.3d at 48–50). The Court—assuming, without deciding, that

Second Amendment scrutiny was appropriate—applied intermediate scrutiny after

App-10

concluding that several federal appellate courts had applied that level of scrutiny in

Second Amendment cases and that the Heller opinion itself pointed in that direction

(id. at 51, 978 N.Y.S.2d 97, 1 N.E.3d 298).

Second Circuit precedent also holds that “[l]aws that place substantial burdens

on core rights are examined using strict scrutiny” whereas “laws that place either

insubstantial burdens on conduct at the core of the Second Amendment or substantial

burdens on conduct outside the core of the Second Amendment (but nevertheless

implicated by it) can be examined using intermediate scrutiny” (Jimenez, 895 F.3d at

234). Here, the record does not establish that New York’s licensing requirement as

backed by a criminal penalty for noncompliance imposes anything more than an

insubstantial burden on conduct at the core of the Second Amendment, i.e., the right

of a law-abiding, responsible citizen to possess a handgun in the home for self-defense

(see generally id. at 234–235). Contrary to defendant’s contention that New York

“prevent[s] citizens from protecting themselves in their home[s] and penaliz[es] them

for doing so,” state law does not effectuate a complete ban on the possession of

handguns in the home (cf. McDonald, 561 U.S. at 750; Heller, 554 U.S. at 629; see

generally Perkins, 62 A.D.3d at 1161). Instead, “New York’s criminal weapon

possession laws prohibit only unlicensed possession of handguns. A person who has

a valid, applicable license for his or her handgun commits no crime” (Hughes, 22

N.Y.3d at 50; see Penal Law § 265.20 [a][3]). Moreover, the Court of Appeals has noted

that a license to possess a handgun in the home is not “difficult to come by” (Hughes,

22 N.Y.3d at 50). There is no evidence on this record to support defendant’s conclusory

App-11

assertions that the expense and logistics of obtaining a license constitute substantial

burdens on the right to possess a handgun in the home for self-defense (see Kwong v.

Bloomberg, 723 F.3d 160, 164–165 [2d Cir.2013], cert. denied 572 U.S. 1149 [2014];

see also United States v. Marzzarella, 614 F.3d 85, 97 [3d Cir.2010], cert. denied 562

U.S. 1158 [2011]; see generally Heller II, 670 F.3d at 1254–1255).

In light of the holding in Hughes, and as reinforced by persuasive federal case

law, we conclude that intermediate scrutiny is the appropriate level by which to

evaluate the constitutionality of the criminal prohibition on the possession of a

handgun in the home without a license.

With regard to that evaluation, “[i]ntermediate scrutiny requires us to ask

whether a challenged statute bears a substantial relationship to the achievement of

an important governmental objective” (Hughes, 22 N.Y.3d at 51). First, it is beyond

dispute that “New York has substantial, indeed compelling, governmental interests

in public safety and crime prevention” (Kachalsky, 701 F.3d at 97; see Hughes, 22

N.Y.3d at 52; New York State Rifle & Pistol Assn., Inc., 804 F.3d at 261–262; Schulz

v. State of N.Y. Exec., 134 A.D.3d 52, 56–57 [3d Dept. 2015], appeal dismissed 26

N.Y.3d 1139 [2016], reconsideration denied 27 N.Y.3d 1047 [2016], lv. denied 27

N.Y.3d 907 [2016] ). Those concerns include the state’s “substantial and legitimate

interest and[,] indeed, . . . grave responsibility, in insuring the safety of the general

public from individuals who, by their conduct, have shown” that they should not be

entrusted with a dangerous instrument (Matter of Galletta v. Crandall, 107 A.D.3d

1632, 1632 [4th Dept. 2013] [internal quotation marks omitted] ). Further, we reject

App-12

defendant’s contention that the state’s interest in this regard does not extend into the

home and is limited to “prevent[ing] public, violent conduct from illegal gun use”

(emphasis added). It is well established that the state’s interest includes protecting

persons within the home from violence and danger attributable to individuals who

pose a safety risk if allowed to possess a handgun (see Delgado, 127 A.D.3d at 644;

Matter of Lipton v. Ward, 116 A.D.2d 474, 475–477 [1st Dept. 1986]).

Second, the criminal prohibition on the unlicensed possession of a handgun,

including in the home, bears a substantial relationship to the state’s interests. “In

the context of firearm regulation, the legislature is ‘far better equipped than the

judiciary’ to make sensitive public policy judgments (within constitutional limits)

concerning the dangers in carrying [and possessing] firearms and the manner to

combat those risks” (Kachalsky, 701 F.3d at 97). We are satisfied that New York “

‘has drawn reasonable inferences based on substantial evidence’ “ in formulating its

judgment on the subject at issue (id.; see e.g. id. at 97–98; Rep. of the N.Y. State Joint

Legis. Comm. on Firearms and Ammunition, 1965 N.Y. Legis. Doc. No. 6 at 7–18).

Contrary to defendant’s assertions, we conclude that the possibility of a criminal

penalty is well-suited to promote compliance with the licensing requirement for

handgun possession in furtherance of the state’s interests (see Hughes, 22 N.Y.3d at

52).

V

Defendant further contends that reversal is required because the court erred

in denying his Batson application concerning the prosecutor’s use of a peremptory

App-13

challenge to exclude a black prospective juror. We reject that contention. Inasmuch

as the prosecutor offered a race-neutral reason for the challenge and the court

thereafter “ruled on the ultimate issue” by determining, albeit implicitly, that those

reasons were not pretextual, the issue of the sufficiency of defendant’s prima facie

showing of discrimination at step one of the Batson test is moot (People v. Smocum,

99 N.Y.2d 418, 423 [2003]; see People v. Jiles, 158 A.D.3d 75, 78 [4th Dept. 2017], lv.

denied 31 N.Y.3d 1149 [2018]; cf. People v. Bridgeforth, 28 N.Y.3d 567, 575–576

[2016]). Contrary to defendant’s contention, we conclude that the court properly

determined at step two that the People met their burden of offering a facially raceneutral explanation for the challenge (see People v. Lee, 80 A.D.3d 877, 879 [3d Dept.

2011], lv. denied 16 N.Y.3d 833 [2011]). Defendant failed to preserve for our review

his contention that the prosecutor’s explanation was pretextual because the

prosecutor engaged in disparate treatment of similarly situated prospective jurors

(see People v. Lucca, 165 A.D.3d 414, 414 [1st Dept. 2018], lv. denied 32 N.Y.3d 1126

[2018]; Lee, 80 A.D.3d at 879; see generally Smocum, 99 N.Y.2d at 423), and we decline

to exercise our power to review that contention as a matter of discretion in the

interest of justice (see CPL 470.15[6][a] ).

***

Accordingly, we conclude that the judgment convicting defendant of criminal

possession of a firearm (Penal Law § 265.01–b [1] ) should be affirmed.

Entered:

January 31, 2020

Mark W. Bennett, Clerk of the Court

App-14

APPENDIX B — DECISION AND ORDER

OF THE SUPREME COURT OF NEW YORK,

APPELLATE DIVISION, FOURTH DEPARTMENT,

DENYING MOTION FOR LEAVE TO APPEAL

TO THE NEW YORK COURT OF APPEALS

DATED JUNE 29, 2020

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

KA 18-00147

THE PEOPLE OF THE STATE OF NEW YORK,

RESPONDENT,

V.

MELQUAN TUCKER,

DEFENDANT-APPELLANT.

Indictment No. 2016-1409

I, Erin M. Peradotto, Associate Justice of the Appellate Division, Fourth

Judicial Department, do hereby certify that, upon the motion of appellate pursuant

to CPL 46-.20 for permission to appeal to the Court of Appeals from the order of this

Court entered January 31, 2020, which affirmed a judgment of the Supreme Court,

Erie County, rendered January 8, 2018, there is no question of law presented that

ought to be reviewed by the Court of Appeals, and permission to appeal is hereby

denied.

Dated:

June 29, 2020

App-15

/s/

Hon. Erin M. Peradotto

Associate Justice

Entered:

July 2, 2020

App-16

APPENDIX C —ORDER OF THE SUPREME COURT

OF NEW YORK, IN THE COUNTY OF ERIE,

DENYING MOTION TO DISMISS COUNT BASED ON

CONSTITUTIONAL CLAIMS

DATED AUGUST 28, 2017

At a term of this Court, held in

And for the County of Erie and State of

New York on July 19, 2017

Present: Hon. Russell P. Buscaglia

STATE OF NEW YORK

SUPREME COURT ; COUNTY OF ERIE

The People of the State of New York,

v.

Melquan Tucker, Defendant

ORDER

Ind. 01409-2016

Upon the transcript attached to this Order, the following decisions have been

decided by this Court as follows:

1.

Written application for the search warrant herein will not be disclosed

to the defense.

2.

Defendant Melquan Tucker’s motion to dismiss the firearm count of

the Indictment is denied.

App-17

3.

The District Attorney is to advise the defense by July 27, 2017, as to

the tapes of the phone conversations the People have in their

possession.

4.

The issue of the operability of the firearm remains an issue for the

jury.

5.

The defense motion to preclude the use of the recorded conversations

is denied.

6.

A Sandoval and Molineux hearing, if required, will be held prior to

trial.

7.

On August 1, 2017 Molineux and issues would be noticed to the

defense.

8.

The search warrant is based on the requisite probable cause.

So Ordered this 28th Day of August, 2017 at Buffalo, New York.

/s/

Hon. Russell P. Buscaglia

GRANTED: August 29, 2017