People v. WallacePeople v. Wallace
Argued March 28, 2018; decided May 8, 2018
People v Wallace, 147 AD3d 1494, affirmed.
Feinman, J.
The question presented on this appeal is whether the “place of business” exception to
I.
On June 9, 2013, defendant was working as a “swing manager“—a newer manager who has not been trained as an assistant manager—at a McDonald‘s restaurant in Buffalo, New York. At approximately 6:00 p.m., defendant was seated at a table in the lobby area of the restaurant, conversing with other employees and his cousin. When defendant stood up from the table to leave, a gun in the pocket of his pants fired, causing an injury to the lower part of his right leg. Defendant headed to the back of the restaurant, followed by his cousin, where he attempted to clean the blood off his leg. When another
Police, responding to a “shots fired” call, proceeded to the scene, but were initially told by customers and employees that no shooting had occurred. After leaving, police received a dispatch that an individual with a gunshot wound had been admitted to a hospital a few blocks from the McDonald‘s. One officer then returned to the restaurant and requestioned an employee, who admitted that defendant had shot himself in the leg. Around this time, another officer proceeded to the hospital, where he found defendant, still in his McDonald‘s uniform, being treated for a gunshot wound to his lower right leg. Defendant explained to the officer that he had been shot by an unknown individual at a nearby bus shelter. After the officer‘s investigation at that location revealed no evidence of a shooting, the officer returned to the McDonald‘s and discovered blood droplets, a shell casing, and bloody towels in the back of the establishment. The police then arrested defendant and charged him with criminal possession of a weapon in the second degree in violation of
The Appellate Division affirmed the judgment of conviction, holding that
“[a]lthough 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 Wallace, 147 AD3d 1494, 1494 [4th Dept 2017] [internal quotation marks and citations omitted]).
The dissenter opined that because defendant possessed the weapon at his “place of business,” the evidence was legally insufficient to establish that defendant violated
II.
Defendant argues that the “place of business” exception encompasses any place where a person earns their livelihood. The People contend that the use of the possessive pronoun implies ownership over the “place of business.” As “place of business” is undefined within the Penal Law (see
“When presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature” (Yatauro v Mangano, 17 NY3d 420, 426 [2011] [internal quotation marks and citations omitted]). “Generally, inquiry must be made of the spirit and
Understanding that “[t]he intention of the Legislature [may] first . . . be sought from . . . all the statutes relating to the same general subject-matter” (McKinney‘s Cons Laws of NY, Book 1, Statutes § 92 [b], Comment [emphasis added]; see Betz v Horr, 276 NY 83 [1937]), it is notable that the subject of firearm possession, along with the “place of business” language, is not exclusive to section 265.03, but can also be found in its counterpart,
“[o]ne part of an act of the legislature may be
referred to in aid of the interpretation of other parts of the same act[,] . . . in [the] case of doubt or uncertainty, acts in pari materia . . . may be referred to in order to discern the intent of the legislature in the use of particular terms” (Smith v People, 47 NY 330, 339 [1872] [emphasis added]; see also McKinney‘s Cons Laws of NY, Book 1, Statutes § 221 [b]).
“These principles of statutory construction assume particular significance where . . . the Legislature has spoken to an issue simultaneously in separate laws . . . and has repeatedly adopted and amended pertinent provisions piecemeal throughout decades” (Sutka v Conners, 73 NY2d at 403-404 [emphasis added]; Seligman v Friedlander, 199 NY 373, 376 [1910]; Morgan v Hedstrom, 164 NY 224 [1900]).
III.
Prior to the 1963 and 1964 amendments, the Committee generated two reports discussing the purpose and intent of such legislation. As the Committee made clear in its 1962 report, the new act was created specifically to standardize this State‘s “scattered,” “inconsistent or flatly contradictory” provisions on licensing and criminal use of weapons (1962 NY Legis Doc No. 29 at 16-18). In 1964, the year the “place of business” exception was first introduced, the Committee substantively reviewed the new statute “with special emphasis on stricter
The Committee‘s use of the possessive pronoun to reference “place of business” (as used in
Still, over a century has passed since the merchant or storekeeper terminology was first introduced to the statute (L 1913, ch 608, § 1) and the modern reader may not interpret this language as intended by the legislature. Because dictionary definitions serve as “useful guideposts” in determining a word‘s ” ‘ordinary’ and ‘commonly understood’ meaning” (People v Ocasio, 28 NY3d 178, 181 [2016]), we use the ordinary dictionary definitions of merchant and storekeeper, as “the operator of a retail business” (Merriam-Webster‘s Collegiate Dictionary 776 [11th ed 2004]) or “one that operates a retail store” (Merriam-
This interpretation is decidedly narrow. The exception applies to those individuals that would qualify for a license to possess a firearm at their “place of business” under
Although defendant was a “swing” manager, he was not the principal operator of the McDonald‘s when he possessed the loaded firearm in the establishment. Thus, the “place of business” exception to
Stein, J. (concurring in result). I agree with the majority‘s conclusion that
Consistent with the statutory language, the Appellate Division Departments have generally interpreted the exemption “narrowly . . . 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 [1st Dept 1997] [citations omitted], lv denied 90 NY2d 902 [1997], quoting People v Maniscalco, 198 AD2d 378, 378-379 [2d Dept 1993], lv denied 82 NY2d 927 [1994]; see also People v Khudadzade, 156 AD2d 384, 384-385 [2d Dept 1989], lv denied 75 NY2d 814 [1990]; People v Fearon, 58 AD2d 1041, 1041 [4th Dept 1977], cert denied 434 US 1036 [1978]). Courts have explained that “the statute is designed to limit the use of guns, ever mindful of the fact that ‘concealed weapons present an immediate and real danger to the public’ ” (People v Francis, 45 AD2d 431, 435 [2d Dept 1974], affd on other grounds 38 NY2d 150 [1975], quoting People v Moore, 32 NY2d 67, 72 [1973]). Accordingly, courts have reasoned that the legislature did not intend to “condone the act of countless numbers of employees of large corporations and governmental agencies in carrying illegal, concealed, operable guns at their places of employment, subject only to a charge of a misdemeanor rather than a felony” (Francis, 45 AD2d at 435). In other words, “[t]o permit large numbers of persons to be subjected only to a misdemeanor for the illegal
In my view, this interpretation is consistent with the rule adopted by the majority today insofar as, in most instances, only an individual who has a substantial possessory, proprietary, or equally significant interest in the business, itself, will qualify as a “merchant, storekeeper, or principal operator of a like establishment” (majority op at 505) with respect to such individual‘s “place of business” (
It is true that both a proprietor and a casual employee may face danger in the location where they are employed. However, the legislature‘s choice of the phrase “place of business” draws a rational distinction between the interests that each may seek to protect based on their relation to the enterprise. Indeed, a number of states have held that firearm prohibitions exempting possession in one‘s dwelling or “place of business“—as commonly understood—do not exempt the carrying of firearms by all employees but, rather, apply only where the possessor of the firearm has a proprietary, possessory, or controlling interest in the business establishment (see State v Perry, 165 Or App 342, 351, 996 P2d 995, 1001 [2000], affd 336 Or 49, 77 P3d 313 [2003]; State v Vickers, 260 Conn 219, 224, 796 A2d 502, 506 [2002]; Commonwealth v Carr, 334 Pa Super 459, 461, 483 A2d 542, 543 [1984]; Berkley v United States, 370 A2d 1331, 1333 [DC 1977]; State v Valentine, 124 NJ Super 425, 427, 307 A2d 617, 619 [1973]; People v Clark, 21 Mich App 712, 716, 176 NW2d 427, 430 [1970]). I would adopt the same approach based on the plain language of
In sum, as the majority concludes, an establishment constitutes one‘s “place of business” only where the individual is a “merchant, storekeeper, or principal operator of a like establishment” (majority op at 505). However, in my view, this will ordinarily be the person or persons who have the greatest
Chief Judge DiFiore and Judges Rivera, Fahey, Garcia and Wilson concur; Judge Stein concurs in result in an opinion.
Order affirmed.