The People of the State of New York v. Xavier Kearney, Defendant. (2026)

Recitation of the papers considered in reviewing the underlying CPL 255.20 motion includes:

Papers Numbered

Defendant's Omnibus, January 27, 2026, Alexandra Katz and Tom Klein, Esq., 1

affirm.

People's Response, March 12, 2026, ADA Sara Jacobson, 2

Office of the District Attorney, Bronx County, affirm.

People's Supplemental Response, April 23, 2026, ADA Sara Jacobson,

Office of the District Attorney, Bronx County, affirm. 3

VERENA C. POWELL, J.:

Defendant Xavier Kearney is before the court on charges of murder in the second degree (Penal Law § 125.25[1]) and related offenses. Following arraignment, the defendant filed an omnibus motion seeking various forms of pretrial relief. The People submitted both an opposition and a supplemental response to the motion and at the court's direction, provided the grand jury minutes for in camera review. The motion is decided as follows.

Grand Jury Presentation

Defendant's motion to inspect the grand jury minutes is granted to the extent that the court has conducted an in-camera inspection. Defendant asserts that the evidence presented to the grand jury was legally insufficient to establish the charges in the indictment and further contends that alleged deficiencies in the prosecutor's legal instructions compromised the integrity of the proceedings. Upon review of the grand jury minutes, the court finds that the specific evidence presented addressed each statutory element of the charged offenses and that such evidence, if accepted as true, established reasonable cause to believe that defendant committed those offenses (CPL 190.65 [1]; see People v Jensen, 86 NY2d 248, 251-252 [1995]). Accordingly, as there is a clear factual basis in the record supporting each count in the indictment, the court declines to dismiss or reduce any counts of the indictment The minutes further demonstrate that the legal instructions delivered to the grand jury were accurate and free of error, lacking any defects that could impair the integrity of the proceedings, as would be required for dismissal (People v Hopkins, 276 AD2d 256, 257 [1st Dept 2000]). Defendant's additional arguments regarding the conduct and the adequacy of the grand jury proceedings have been examined and found to be without merit.

The Defendant's application to release the grand jury minutes is denied (see CPL 210.30 [3]; People v Robinson, 98 NY2d 755, 757 [2002].) Nevertheless, to the extent that the People have not done so, they are reminded of their discovery obligations under CPL 245.20 (1) (b) to provide the Defendant with the portions of the grand jury minutes containing witness testimony.

Wade/Crews/Rodriguez

Defendant's motion to suppress identification testimony is granted to the extent of ordering a Rodriguez hearing and, if necessary, a Wade hearing (see CPL 710.20 [6]; People v Rodriguez, 79 NY2d 445, 452 [1992]; see also United States v Wade, 388 US 218, 241 [1967]). The prosecution consents to a Rodriguez hearing. Here, the People gave CPL 710.30 notice that they intend to offer identification testimony at trial given by one or more witnesses who previously identified defendant to a public servant. As a result, a Rodriguez hearing is ordered. Defendant's request for a Cruz hearing is denied (see United States v Crews, 445 US 463, 470 [1980]).

Mapp/Dunaway

Defendant's motion to suppress physical evidence is granted to the extent that a Mapp/Dunaway hearing is ordered (see CPL 710.20 [1]; Mapp v Ohio, 367 US 643, 655 [1961]; Dunaway v New York, 442 US 200, 216 [1979]). In determining whether a hearing is warranted, the court must analyze the specific factual allegations made by the defendant, the pleadings, the context of the motion, and the defendant's access to information (People v Mendoza, 82 NY2d 415, 426 [1993]; see CPL 710.60 [4]).

Here, the People did not provide notice of any items allegedly seized from the defendant or address the issue in opposition. However, defendant asserts that law enforcement seized multiple personal items, including a firearm, at the time of arrest. Although the People have the opportunity to refute the defendant's assertions regarding the seizure, they have declined to do so in their response. The prosecution's reliance on the earlier securing of a trap-and-trace warrant as the basis for probable cause for defendant's arrest is insufficient. The information presented to the court to secure the signing of the trap-and-trace warrant justifies surveillance of the device in question, that is separate and distinct from probable cause to arrest the defendant. These uncontroverted allegations, taken together with defendant's claimed circumstances of arrest, and the People's lack of refutation or clarification, create concrete factual disputes regarding the legality of the search and seizure. Pursuant to Mendoza, such a factual conflict necessitates an evidentiary hearing to resolve issues regarding the acquisition of evidence (Mendoza at 427 ["Whether a defendant has raised factual issues requiring a hearing can only be determined with reference to the People's contentions"]). Accordingly, a Mapp/Dunaway hearing is ordered.

Bruen

The central legal issue is whether defendant's alleged unlawful possession of a firearm and ammunition, as charged under Penal Law §§ 265.03(1)(b), 265.03(3), 265.01(9), 265.01-b(1) and New York City Administrative Code § 10-314(a), should be dismissed on Second Amendment grounds. Defendant seeks dismissal with prejudice of these charges pursuant to CPL 210.20 (1) (a), 210.25, and the incorporated Second Amendment. In support, the defense asserts that defendant possessed a constitutional right to possess and carry firearms and ammunition, relying on New York State Rifle & Pistol Ass'n, Inc. v Bruen (597 US 1 [2022]). Accordingly, defendant contends that prosecution for firearm and ammunition possession violates his constitutional rights and the charges must be dismissed.

Defendant has standing to challenge the facial constitutionality of New York's firearm licensing scheme although he did not apply for a gun license (People v Johnson, ___ NY3d ___, 2025 NY Slip Op 06528, *2 [2025]; People v Carr, 248 AD3d 663 [1st Dept 2026]). Under Penal Law §§ 265.01 and 265.03, individuals are generally prohibited from possessing firearms or ammunition without a valid license issued pursuant to a statutory scheme that, until recently, required a showing of 'proper cause.' The defense contends that under Bruen, the inclusion of the proper cause provision rendered New York's entire licensing scheme unconstitutional. However, courts have consistently held that Bruen only invalidated the 'proper cause' requirement and left the remainder of the licensing statute intact (People v Peguero, 246 AD3d 668, 669 [1st Dept 2026]). Therefore, claims that Bruen undermined the constitutionality of aspects of New York's criminal possession statutes are unpersuasive, as these provisions were not affected and remain constitutional (People v Richardson, 246 AD3d 1396 [4th Dept 2026]; People v Mancuso, 225 AD3d 1151, 1153 [4th Dept 2024], lv denied 43 NY3d 964 [2025]; see People v Brinson, 240 AD3d 1376, 1378 [4th Dept 2025]).

In fact, Bruen "did not render the state's entire gun licensing scheme unconstitutional" because the specific portion of the scheme that it invalidated is 'severable' " (People v Johnson, ___ NY3d at ___, 2025 NY Slip Op 06528, *3). Likewise, defendant's reliance on the historical tradition of America's regulation of firearms to invalidate New York's statutory scheme is also flawed. A more nuanced historical analysis illustrates that firearm regulation in America is rooted in an evolving legal tradition that sought to balance individual liberties with public safety concerns (see Saul Cornell and Emma Cornell, "The Second Amendment and Firearms Regulation: A Venerable Tradition Regulating Liberty While Securing Public Safety," 108 Am. J. Pub. Health 867 [2018]; DOI: 10.2105/AJPH.2018.304501/PMID:29874486/PMCID: PMC5993416). Throughout the colonial and early national periods, the regulation of firearms reflected the diverse governance structures of the colonies and states, each tailoring laws to its demographic realities and perceived threats. This resulted in a patchwork of statutes, ordinances, and common law practices, rather than a single, unified national policy. Notably, restrictions were often imposed to disarm those considered dangerous or potentially subversive, including disenfranchised populations such as Native Americans (Massachusetts, 1633); free and enslaved Blacks (Virginia, 1640; Manhattan, 1681-83; New York and Virginia, Black Codes, 1712; Florida, 1825; South Carolina, 1740), and later, individuals convicted of felonies. Over time, legislative responses to changing social, political, and economic circumstances resulted in the persistent exclusion of certain categories from firearm access, a principle reflected in both state and federal law through to the federal Gun Control Act of 1968.¹ While those targeted by regulations shifted, felons have consistently been denied firearm rights. Whereas federal law today imposes a lifetime ban for most felons, such rights may only be restored in New York through a pardon or expungement. Mr. Kearney, having been convicted of attempted criminal possession of a weapon in the second degree (a class D violent felony offense), retains disabilities relating to firearms under Penal Law sections 265.01(4) and 400.00 despite receiving a certificate of relief from disabilities. Since Kearney has not provided proof of a pardon or expungement, he remains ineligible to lawfully possess or carry a firearm in New York. Furthermore, even if he had applied for a license and paid the requisite fees, his prior felony conviction would continue to disqualify him under New York's good moral character requirement (People v Jackson, 88 Misc 3d 1229[A], 2026 NY Slip Op 50274 [U], *4 [Sup Ct, New York County 2026]; see also People v J.R., 247 AD3d 421, 421 [1st Dept, 2026]; People v Jhowalli S., 245 AD3d 568, 568-569 [1st Dept, 2026]; People v Johnson, 246 AD3d 474, 475 [1st Dept, 2026]).

To prevail on a facial constitutional challenge, a defendant must establish that the statute or legislative provision in question is invalid in every possible application, meaning that there exists no set of circumstances under which the law would be constitutionally permissible (People v Johnson, ___ NY3d at ___, 2025 NY Slip Op 06528, *3). The burden is therefore heavy, as the Supreme Court and New York courts have repeatedly recognized that facial invalidation is appropriate only where the law has no constitutionally valid application whatsoever (Matter of Moran, 99 NY2d 443, 448 [2003]). In the present case, defendant has not presented any evidence or legal argument demonstrating that New York's licensing scheme for firearm or ammunition possession is unconstitutional in every instance (People v Padia, 245 AD3d 832, 833 [2d Dept 2026]). Consequently, defendant cannot sustain his claim that the weapons charges in the indictment are facially unconstitutional.

Citing a fifty-four percent increase in the number of concealed carry permit applications and a corresponding increase in the application processing by the New York City Police Department in reviewing those applications after the issuance of the Bruen decision, defendant states that the process was unconstitutionally long, further violating his Second Amendment right to carry. This was complicated by the fact that defendant is financially unable to afford the attendant application fees of $340 for a handgun license and an $88.25 fingerprint fee (https://licensing.nypdonline.org/new-app-instruction/ [last accessed August 17, 2026]). Defendant's arguments fail for several reasons. First, as he did not submit a concealed carry permit application, he has failed to establish that the requisite delay in securing a concealed carry permit was unconstitutionally long under the relevant circumstances (Peguero, 246 AD3d at 669). Second, he has not established that the fee requirement was unconstitutional since he has not shown that the fees were exorbitant or designed to prevent gun ownership (People v Ramos, 246 AD3d 519, 519 [1st Dept 2026]).

Lastly, the court finds defendant's motion to be procedurally defective because defendant failed to serve notice of these constitutional claims on the Attorney General, as required by Executive Law § 71. This procedural deficiency is not merely a technicality; it precludes the court from reaching the substantive merits of the motion until proper notice has been provided. When the constitutionality of a state statute is challenged, Executive Law § 71 mandates service of notice on the Attorney General to allow for intervention and defense of the statute's validity, if appropriate. Compliance with this notice requirement is a prerequisite for judicial review, as it ensures that the Attorney General has the opportunity to protect the State's interests and participate in the litigation (People v Johnson, 246 AD3d 474, 474 [1st Dept 2026]; see People v Castillo, 234 AD3d 557, 558, [1st Dept 2025, lv denied 43 NY3d 1006 [2025]).

Accordingly, the absence of such notice deprives the Attorney General of the opportunity to appear and compels the court to withhold consideration of the motion until procedural requirements are satisfied, rendering the motion not properly before this court.

In any case, this discussion is merely academic. Although defendant allegedly had an unlicensed gun and gun parts in his possession at the time of arrest, he was indicted for more than mere possession of a gun without either a professional (gunsmith or dealers) or individual license (outside his home or place of business). Kearney was indicted for second-degree murder, first-degree manslaughter, and separate weapons charges related to the homicide. The grand jury presentation did not rest on the statutory gun presumption (Penal Law § 265.15[4]). Instead, the presentation rested on direct and circumstantial evidence that defendant, acting in concert with several others, unlawfully used a firearm against another causing their death. As defendant has not shown that the statute is unconstitutional, that he served notice on the Attorney General, or that he would have met the licensing requirements, the motion to dismiss the indictment as unconstitutional is denied.

Huntley/Dunaway

Defendant seeks the suppression of properly noticed statements or, in the alternative, that the Court order a Huntley/Dunaway hearing (see CPL 710.20 [3], [4], 710.60; Dunaway v New York, 442 US 200, 216 [1979]; People v Huntley, 15 NY2d 72 [1965]). The People consent to a Huntley hearing, although they oppose the underlying facts alleged. Here, the People served 710.30 notice that they intend to offer statements at trial allegedly made by the defendant to a public servant. Defendant's motion to suppress statements is granted to the extent that a Huntley/Dunaway hearing is ordered.

Discovery and A Bill of Particulars

The defendant's request for a bill of particulars is denied. The criminal court complaint and indictment, along with the People's automatic disclosure form with initial discovery notices, the relevant police paperwork, and the affirmation in response to the Defendant's motion, together "adequately apprise [ ] defendant of the charges against him with sufficient specificity to enable him to prepare and conduct a defense" (People v Elliot, 299 AD2d 731, 732 [3d Dept 2002]; CPL 200.95).

To the extent the People have not previously done so, the People are directed to preserve and provide pretrial disclosure of all materials subject to CPL 245.20 and CPL 200.95 that are not subject to delayed disclosure.

The defendant is reminded to comply with the reciprocal discovery requirements outlined in CPL 245.20(4) and to file a certificate of compliance pursuant to CPL 245.50(2).

Rosario/Brady Material

The People are reminded of their continuing obligation pursuant to CPL 240.20; Brady v Maryland, 373 US 83 (1963); People v Vilardi, 76 NY2d 67 (1990); People v Santorelli, 95 NY2d 412 (2000); Kyle v Whitley, 514 US 419 (1995); and People v Consolazio, 40 NY2d 446 (1976).

The People are also reminded of their affirmative duty to preserve Rosario and discoverable material and to disclose such materials within the time period required by statute and decisional law (see CPL 245.20; see also People v Handy, 20 NY3d 663 [2013]; People v Rosario, 9 NY2d 286 [1961]; People v Kelly, 62 NY2d 516 [1984]; People v Joseph, 86 NY2d 565, 570-71 [1995]; People v Wallace, 76 NY2d 953, 955 [1990]; People v Martinez, 71 NY2d 937, 940 [1988]).

Sandoval/Ventimiglia/Molineux

To the extent the People have not already done so, the People are directed to notify Defendant, within the time periods required by statute, of all specific instances of Defendant's prior criminal, vicious, or immoral conduct, whether charged or uncharged, of which the prosecutor has knowledge and which the prosecutor intends to use at trial for purposes of impeaching Defendant's credibility at trial (see CPL 245.20).

The defendant's request for a Sandoval hearing is granted and deferred to the trial court (People v Sandoval, 34 NY2d 371 [1974]); see also People v Ventimiglia, 52 NY2d 350 [1981]; Luck v United States, 348 F2d 763 [DC Cir 1965]). All issues concerning the use of prior criminal convictions or bad acts, if any, which the People wish to use on their direct case, are referred to the trial court (see People v Molineux, 168 NY 264 [1901]).

Reservation of Rights

Upon a proper showing, the court will entertain supplemental motions based upon grounds that the defendant could not, with due diligence, have been previously aware of or which, for other good cause, could not reasonably have been raised in this motion (see CPL 255.20 [3]).

This decision constitutes the order of the court.

Dated: April 27, 2026

Bronx, New York

HON. VERENA C. POWELL, A.J.S.C.

FOOTNOTES

1.   The Gun Control Act (GCA) of 1968 also prohibited the sale of guns to people adjudicated as mentally ill, users of illegal drugs, undocumented immigrants, and people dishonorably discharged from the military.

Verena C. Powell, J.