PEOPLE v. PERKINS (2009)

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered August 17, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

In September 2006, defendant was involved in a verbal confrontation with another person, which escalated to a point when defendant drew a handgun and fired two shots at the victim in front of the victim's home.   The victim was uninjured and defendant fled the scene.   Defendant was subsequently indicted for one count each of reckless endangerment in the first degree,¹ CRIMINAL POSSESsion of a weapon in the second degree, criminal possession of a weapon in the third degree, attempted assault in the first degree and attempted murder in the second degree.   After a trial, the jury returned a verdict convicting defendant of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree and acquitting him of the remaining charges.   Defendant was thereafter sentenced to 8 1/212 years in prison and 3 1/212 years of postrelease supervision on the conviction for criminal possession of a weapon in the second degree and a concurrent sentence of 6 1/212 years in prison with three years of postrelease supervision on the conviction for criminal possession of a weapon in the third degree.   Defendant now appeals and we affirm.

 We reject defendant's contention that the statutes under which he was convicted violate the Second Amendment of the U.S. Constitution and Civil Rights Law § 4. Defendant's reliance on District of Columbia v. Heller, ---U.S. ----, 128 S.Ct. 2783, 171 L.Ed.2d 637 [2008] is misplaced.   While the United States Supreme Court concluded in that case that the Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means of self-defense within the home, it also held that the right conferred by the Second Amendment-and, by extension, Civil Rights Law § 4 (see Chwick v. Mulvey, 2008 N.Y. Slip Op. 22486(U), 2008 WL 5478802, *19 [2008] )-is not absolute and may be limited by reasonable governmental restrictions (see District of Columbia v. Heller, 128 S.Ct. at 2816).

Unlike the statute at issue in Heller, Penal Law article 265 does not effect a complete ban on handguns and is, therefore, not a “severe restriction” improperly infringing upon defendant's Second Amendment rights.   Moreover, in our view, New York's licensing requirement remains an acceptable means of regulating the possession of firearms (see People v. Morrill, 101 A.D.2d 927, 927, 475 N.Y.S.2d 648 [1984];  People v. Ferguson, 21 Misc.3d 1120(A), 2008 N.Y. Slip Op. 52112(U), 2008 WL 4694552, *4 [N.Y. City Crim. Ct. 2008] ) and will not contravene Heller so long as it is not enforced in an arbitrary and capricious manner (see District of Columbia v. Heller, 128 S.Ct. at 2819).

Here, defendant was not in his home at the time of the crime and did not have a valid pistol permit.   Inasmuch as the relevant sections of the Penal Law are constitutionally sound and defendant's conduct did not conform to that which is protected by the Second Amendment and Civil Rights Law § 4, defendant's constitutional challenge lacks merit.

 Defendant failed to preserve his objection to the jury pool based upon comments made by two prospective jurors (both of whom were successfully challenged for cause), as he failed to raise the objection to the jury pool before the jury was empaneled (see People v. Cosmo, 205 N.Y. 91, 100, 98 N.E. 408 [1912];  People v. O'Keefe, 281 App.Div. 409, 415, 120 N.Y.S.2d 349 [1953], affd. 306 N.Y. 619, 116 N.E.2d 80 [1953] ).   Nor did defendant either request a curative instruction or object to its absence.   Were we to consider defendant's arguments, we would find them to be unavailing in any event, as the prospective jurors' comments did not warrant a curative instruction and County Court's general admonishments to the jury pool adequately addressed any potential problems that defendant now raises on appeal.

 Defendant's challenge to his conviction of criminal possession of a weapon in the third degree based upon the absence of an inclusory concurrent count charge to the jury under CPL 300.40(3)(b) is similarly unpreserved as he failed to request such charge or object to its absence before the jury retired to deliberate (see People v. Dennis, 263 A.D.2d 618, 618, 693 N.Y.S.2d 299 [1999], lvs. denied 94 N.Y.2d 822, 830, 702 N.Y.S.2d 592, 600, 724 N.E.2d 384, 392 [1999] ).

 Defendant's contentions concerning County Court's bases for sentencing are unpreserved for appellate review and, in all events, are unpersuasive.   Moreover, “ ‘[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof [positive] that defendant was punished for asserting his right to trial’ ” (People v. Riback, 57 A.D.3d 1209, 1218, 870 N.Y.S.2d 517 [2008], quoting People v. Simon, 180 A.D.2d 866, 867, 580 N.Y.S.2d 493 [1992], lvs. denied 80 N.Y.2d 838, 587 N.Y.S.2d 922, 923, 600 N.E.2d 649, 650 [1992] ).   With regard to defendant's claim that the sentences were harsh and excessive, inasmuch as we do not find that County Court abused its discretion or that extraordinary circumstances exist to warrant a reduction in the interest of justice, we decline to disturb them (see People v. Massey, 45 A.D.3d 1044, 1048, 845 N.Y.S.2d 197 [2007], lv. denied 9 N.Y.3d 1036, 852 N.Y.S.2d 21, 881 N.E.2d 1208 [2008] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The People consented to the dismissal of this count on the first day of trial.

STEIN, J.

MERCURE, J.P., SPAIN, KAVANAGH and McCARTHY, JJ., concur.