PEOPLE v. MARTIN (2025)

Judgment, Supreme Court, New York County (Felicia A. Mennin, J.), rendered August 23, 2022, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the second degree, and assault in the third degree, and sentencing him to concurrent terms of 31/212 years on each of the weapon possession counts and 364 days on the assault count, unanimously affirmed.

As the People concede, defendant's Second Amendment arguments as to both possession counts are preserved because the trial court considered and rejected these challenges on the merits in denying defendant's CPL 330.30 motion (see People v. Hughes, 22 N.Y.3d 44, 49, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013]).  However, defendant's argument that his convictions under Penal Law § 265.03(3) and Penal Law § 265.03(1)(b) violate the Privileges and Immunities Clause, raised for the first time on appeal, is unpreserved and we decline to reach it in the interest of justice.

Defendant lacks standing to assert his facial and as-applied challenges to Penal Law § 265.03(3) (see United States v. Decastro, 682 F.3d 160, 164 [2d Cir.2012];  see also People v. Diallo, 232 A.D.3d 427, 427, 220 N.Y.S.3d 288 [1st Dept. 2024], lv denied 43 N.Y.3d 930, 229 N.Y.S.3d 79, 254 N.E.3d 623 [2025];  People v. Khan, 225 A.D.3d 552, 552, 206 N.Y.S.3d 74 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 322, 237 N.E.3d 1262 [2024]).  Further, defendant's contention that standing is established in the absence of any attempt to obtain a license in New York because such an attempt would have been futile is speculative and unavailing.  The facts in the record on appeal do not support a finding that defendant would have been unable to obtain a firearm license in New York based on his domicile in Pennsylvania (see Jackson–Bey v. Hanslmaier, 115 F.3d 1091, 1095 [2d Cir.1997] [petitioner-inmate lacked standing where he “failed to make a substantial showing that registering his religious affiliation would have been futile”]).  Additionally, defendant makes no compelling argument that the unpreserved claims in this case warrant review despite the absence of standing.  In any event, defendant's challenges in this respect fail on the merits (see e.g. People v. Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584 [1st Dept. 2024], lv granted 42 N.Y.3d 939, 217 N.Y.S.3d 895, 242 N.E.3d 680 [2024];  People v. Liriano, 226 A.D.3d 520, 209 N.Y.S.3d 30 [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 323, 237 N.E.3d 1263 [2024]).

Assuming proper standing, defendant similarly fails to demonstrate that Penal Law § 265.03(1)(b) is unconstitutional as applied in this case because the jury was instructed as to the permissive presumption pursuant to CPL 265.15(4).  More specifically, defendant argues that the jury was improperly permitted to presume unlawful intent from his unlicensed possession of the gun.  Defendant's argument is premised on the unavailing proposition that the Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) invalidated New York's licensing scheme in its entirety.  Bruen did not so hold (id. at 79, 142 S.Ct. 2111 [Kavanaugh, J., concurring] [“the Court's decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense”];  see also People v. Rivera, 41 N.Y.3d 936, 939–940, 206 N.Y.S.3d 521, 230 N.E.3d 443 [2023] [“Bruen alone does not compel the conclusion that New York's criminal possession of a weapon statutes are unconstitutional”];  People v. Emmanuel D., 238 A.D.3d 1068, 1069, 235 N.Y.S.3d 143 [2d Dept. 2025]).  Moreover, as defendant recognizes, the presumption does not apply to someone who has a license to carry a firearm in New York (see Penal Law § 265.20[a][3]).  Therefore, on this record, defendant makes no persuasive argument for concluding that the permissive presumption did not survive the holding in Bruen (see People v. Sargeant, 230 A.D.3d 1341, 220 N.Y.S.3d 85 [2d Dept. 2024]).

The evidence was legally sufficient to prove intent to use a loaded firearm unlawfully under Penal Law § 265.03(1)(b).  The testimony at trial demonstrated that when Freddy Vargas, a maintenance worker, entered the lobby, he observed Miguel Silverio, the doorman, struggling with defendant.  Vargas rushed over and held defendant down.  As he struggled with defendant, Vargas saw a gun on the floor underneath a bench near the elevator.  Vargas testified that the gun “must have fallen off from [defendant]” during the struggle.  Defendant was able to “grab the gun” with his hand.  Vargas “grabbed [defendant's] hand so he wouldn't do anything with the gun.”  Vargas stated that when he saw defendant's hand touch the gun, he screamed.  According to Silverio, when he heard Vargas's scream and saw defendant's hand on the gun, he stepped on both of their hands, “grabbed the gun, and pulled it from [defendant's] hand.”  Silverio testified repeatedly that the gun was in defendant's hand when he removed it from defendant and that Vargas's hand was on defendant's hand.  Surveillance video shows defendant reaching under the bench where the gun had fallen.

Viewing the evidence in the light most favorable to the prosecution, we find that the evidence supporting defendant's conviction under Penal Law § 265.03(1)(b) was legally sufficient to establish defendant's guilt beyond a reasonable doubt (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]).  In light of the above, defendant's assertion that the evidence established only that he possessed a loaded firearm and that his conviction on this count was based entirely on the presumption is unavailing.  Additionally, the conviction on this count is also not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490 [1995] [weight of the evidence review “is constrained to ․ the elements of the crime as charged without objection by defendant”]), and there is no basis for disturbing the jury's credibility determinations (see People v. Velasquez, 44 A.D.3d 412, 412, 843 N.Y.S.2d 253 [1st Dept. 2007], lv denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212 [2008]).

Likewise, defendant's conviction of second-degree criminal possession of a weapon under Penal Law § 265.03(3) was supported by legally sufficient evidence, and the verdict was not against the weight of the evidence (see Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  see also Noble, 86 N.Y.2d at 815, 633 N.Y.S.2d 469, 657 N.E.2d 490;  People v. Baque, 43 N.Y.3d 26, 30–31, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).

The court properly denied defendant's CPL 30.30 motion.  Defendant failed to establish that six months or more of delay was chargeable to the People (see People v. Mannino, 306 A.D.2d 157, 157, 761 N.Y.S.2d 189 [1st Dept. 2003], lv denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003]).

We have considered defendant's remaining contentions and find them unavailing.