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The PEOPLE of the State of New York v. A.L., Defendant.
The defendant has filed a motion requesting that he be granted early release from probation pursuant to CPL § 410.90.1 The People consent to the relief requested by the defendant and the probation department does not oppose the application. For the reasons set forth below, defendant's motion is denied.
On June 26, 2018, the defendant was arrested and charged with one count of criminal possession of a weapon in the third degree in in violation of Penal Law § 265.02(7), a class D felony. The case was presented to a grand jury and an indictment was voted. On June 26, 2018, the defendant was arraigned on Indictment XXX/2018 and entered a plea of not guilty. The indictment alleges that on or about January 2, 2018, the defendant possessed an assault weapon, to wit, a semiautomatic rifle that has the ability to accept a detachable magazine and has the following characteristics: a folding or telescoping stock, a bayonet mount, and a flash suppressor.
In his papers, the defendant states that he legally bought the subject rifle in January 2005 in his home state of North Carolina. In 2012 he moved to New York City with his then wife, L.L. He contends that when the subject rifle was found in 2017 2 it was in the back of a closet in a box that had not been opened since he and his wife moved to New York City. The subject rifle had never been removed from its moving box and there was no ammunition for the subject rifle in the box or anywhere in the apartment. Defendant contends that he legally purchased the firearm at issue in North Carolina in 2005 and was unaware that it was illegal to carry it over state lines when he moved to New York with his then wife.
The defendant was offered a plea to criminal possession in the third degree (PL § 265.02(7)) and was sentenced to five years’ probation on October 23, 2020. Defendant argues that during the pendency of the case and almost three years of probation he never violated any of the rules and regulations of his release and was a model citizen, employed, and volunteered his time and money to various charitable organizations.
His attorney cites to the defendant's efforts to lead a law-abiding life while living in North Carolina, noting that he has met every obligation of the Probation Department and that he has done so well that his Probation Officer supports his request and has so informed the New York County Probation Office. He has not purchased any new guns or rifles since his return to North Carolina, nor does he have any intention to do so. The defendant argues that the facts and circumstances of this matter clearly demonstrate that the defendant is not a threat to society to any degree and will continue to lead a law-abiding life, noting that the goals of probation are to give the probationer time to do exactly what the defendant has accomplished. The defendant requests this relief because while on probation his ability to travel is severely limited and he has turned down many business opportunities because he cannot travel out of state, affecting his ability to earn an income. In addition, he argues that he is not receiving any drug treatment, vocational, educational or mental health treatment through probation, and accordingly, the role of probation is not helping him in any fashion and rather hindering his ability to fully grow his business.
During oral argument of the motion, the court inquired as to the reason for the defendant's request, which appeared to be related to travel restrictions. The New York City Probation Department noted that obtaining approval for out of state travel for work is routinely granted. The court requested that the defendant provide a letter to the court outlining how continuing probation impacts him. In response, the defendant submitted an email to the court stating that his business is in real estate acquisition and development, as well as construction management and brokerage. Since leaving New York City, he has tried to reestablish his business in North Carolina, and the nearby counties of neighboring states. Given the current fast moving real estate market conditions, the defendant states that he has missed out on good out-of-state opportunities because he does not have the immediate flexibility to drive over the North Carolina border in less than 48 hours, causing him to pass on 7 legitimate real estate opportunities. The defendant also argues that he has been unable to pursue approximately 4 “career changing” opportunities with out of state companies looking to add him to their team. He also would like to explore career opportunities that would require him to relocate outside of North Carolina.
Discussion and Findings
CPL § 410.90(3)(a) provides that:
The court shall grant a request for termination of a sentence of probation under this section when, having regard to the conduct and condition of the probationer, the court is of the opinion that:
(i) the probationer is no longer in need of such guidance, training or other assistance which would otherwise be administered through probation supervision;
(ii) the probationer has diligently complied with the terms and conditions of the sentence of probation; and
(iii) the termination of the sentence of probation is not adverse to the protection of the public.
No such termination shall be granted unless the court is satisfied that the probationer, who is otherwise financially able to comply with an order of restitution or reparation, has made a good faith effort to comply therewith. See also, People v. Pondi, 65 Misc 3d 1206(A) (NY Cty. Ct., Sullivan Cty. 2019)
In analyzing the above factors, it appears that defendant has met prongs (i) and (ii) of CPL § 410.90(3)(a), as both the North Carolina and New York State Department of Probation support his request and have not indicated that the defendant is in violation of his probation in any way. The People also consent to the defendant's request. However, with regard to prong (iii), the court cannot find that termination of the sentence of probation is not adverse to the protection of the public, particularly given that the defendant's reason for his request does not demonstrate that continuing probation is creating a tremendous hardship for him in light of the potential danger to the public. Here, the defendant pled guilty to criminal possession of an assault rifle, which is a very serious offense, and resulted in a sentence of five years’ probation.
While the defendant argues that probation has limited his ability to explore additional work opportunities, it does not appear to have impacted his ability to earn a living. Rather, his reasons for requesting early termination of probation center on him wanting to explore additional (and presumably more lucrative) opportunities. According to the Probation Department, requests to travel out of state for work are routinely granted, although the amount of time it takes to obtain such approval is unclear. Notwithstanding, the basis for the defendant's request does not appear to be compelling and may be pretextual given that “[travel] restrictions are not unreasonably burdensome,” albeit not ideal. People v. Weitz, 37 Misc 3d 445, 459 (NY Sup. Cty. NY Cty. 2012).
While the defendant has to date complied with the terms of his probation, the court is “very mindful of the finality of the termination of probation.” People v. Thatcher, 75 Misc 2d. 1219(A) *3 (Poughkeepsie City Ct. 2021), citing, People v. Ulerie, 2007 WL 4620845 (Sup. Ct. Kings Cty. 2007). New York has a long history of enacting strict gun control laws to protect the public. See, NY Penal Law Ann. § 400.00, et. seq. Given the severity of the offense, and the legislature's recognition of the need to address rising gun violence in this county, the court cannot conclude that the termination of the defendant's sentence of probation is not adverse to the protection of the public as contemplated in CPL 410.90(3)(a). The defendant completing his probation will insure his continued compliance and protect the public.
ORDERED that the defendant's motion is denied in its entirety; and it is further
ORDERED that any relief not expressly granted herein is denied.
The foregoing is the decision and order of the Court.
FOOTNOTES
1. Although the defendant did not cite a specific statute, CPL § 410.90 addresses termination of sentence.
2. Defendant alleges that his then wife informed the police about the rifle after he had moved out of their residence due to divorce proceedings.
Tandra L. Dawson, J.
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Docket No: Indictment No. 2018
Decided: May 17, 2023
Court: Supreme Court, New York County, New York.
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