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The PEOPLE of the State of New York, Plaintiff, v. K.B., Defendant.
The defendant has applied for a modification of his Certificate of Relief from Disabilities [hereinafter, “COR”], granted in 2011. The 2011 COR relieved K.B. of all legal bars and disabilities to employment, license, and privilege except those enumerated sections related to weapons imposed under Sections 265.01(4) and 400.00 of the Penal Law. The defendant, an officer with the New York City Department of Corrections for over 20 years, is seeking to restore his right to carry a firearm. For the following reasons, his application is denied.
On January 6, 2003, the defendant was arrested and charged with Criminal Contempt in the Second Degree, Penal Law § 215.50(3), and other charges. The complaint alleged that a week earlier the defendant had violated a final Order of Protection issued on March 26, 2002, under Kings County Docket No. 2002KNxxxxxx, requiring the defendant, inter alia, to stay away from his teenage stepdaughter, O.M. The defendant had pleaded guilty to Harassment in the Second Degree, Penal Law § 240.26(1), on the earlier docket. On March 10, 2003, the defendant pleaded guilty to the misdemeanor contempt charge, and the Hon. William Garnett sentenced him to a three-year term of probation. Justice Garnett also issued a three-year stay-away Order of Protection, requiring the defendant to have no contact with D.B., his wife, and Ms. M. Since that date, the defendant has pursued a number of actions to free himself of the disabilities inherent to his conviction and sentence.
First, in 2005, the defendant moved, pursuant to C.P.L. § 410.90(3), to terminate his probation early. Justice Garnett denied the defendant's motion, finding that the defendant was “still in need of guidance and supervision by the Probation Department and that termination of probation would be adverse to the protection of the public including, specifically, the complainant.”
Second, after completing his probationary sentence, the defendant petitioned Justice Garnett for a COR, pursuant to Corrections Law § 702, specifically requesting that he be allowed to carry a firearm. Justice Garnett ordered the Department of Probation to conduct an investigation, as is customary with all such petitions. Justice Garnett denied the defendant's petition, finding that the defendant had not set forth that he suffered any disability in his employment from the prohibition against his carrying a firearm, and that issuing a COR would not further the defendant's rehabilitation and would not be in the public interest. Justice Garnett also noted that the defendant had told the Department of Probation that he wanted the COR “to be exonerated.” Justice Garnett stressed that the defendant's statement indicated that he was not contrite about his criminal conduct, and that he had not fully embraced the fact that he had engaged in a criminal act. The Court held, “To grant a certificate for this reason undermines the significance of the defendant's wrongdoing, retards his rehabilitation in that it would condone his denial of full responsibility, and does not contribute to the public interest.”
Third, in 2011, the defendant again applied for a COR, this time to Judge Geraldine Pickett. In its investigative report, the Department of Probation recommended that the COR be granted, as long as the defendant was not permitted to possess, own, or carry firearms, because firearms were not necessary for the defendant's continued employment with the New York City Department of Corrections. Judge Pickett granted the COR, specifically noting “right to carry firearm denied.”
Fourth, in early 2018, the defendant filed what seems to have been a joint pro se application to have his conviction sealed pursuant to Criminal Procedure Law § 160.59, and to have his COR amended to include the right to carry firearms. Although he was initially proceeding pro se, the court assigned the defendant's present counsel, Darran Winslow, Esq., to assist him. The Hon. Elizabeth Warin reviewed the defendant's application in 2018. In colloquy on the day the application was granted, the court addressed Mr. Winslow:
What I'm not clear on from this, Mr. Winslow, is ordinarily someone makes an application for sealing because the fact of the conviction has prevented him from accomplishing something․ Whether it's something professional, and it's not clear — it is clear from an emotional level that Mr. B. doesn't want to have this anymore but it's not clear to me what impotent (sic) this is causing for him in his re-entry into society as a fully probative (sic) member.
Transcript 6/25/18, at 12, ll. 7-16
In response, Mr. Winslow stated:
I talked to Mr. B. directly about that because I wanted to know why. I will say, the first thing he told me was not that he needed something, it really was an emotion. He said I want my good guy letter, that's what he said to me. He said, Darran, he expressed he feels like, you know, what he's been through and he just wants these convictions, that were a part, really — I think explaining this happened in an exact window of time, if you consider what was going on in his life, it makes sense to me what was happening․ I think there are — Judge, I wanted to make sure I understood what we had previously discussed, so in discussing, look, he would like to proceed with — he would like to try. There's certainly discretion with respect to his firearm and he certainly thinks this would assist him with that. When he applied for the certificate of disability, he was told, well, if a judge, you know, cleared this up for you, that would factor in, too. I don't know if there was a promise given, I doubt there was, but certainly he thinks it would be a factor that could weigh in his favor. So I think there is some — he's been cleared psychologically and all the other ways, this seems to be the only impediment that he has to go through that process. This isn't going to necessarily directly affect that but it could effect (sic) that so that's something that's important.
Id., at 12, l. 17-13, l.1; 13, l. 21-14, l.11.
Judge Warin carefully weighed the factors set forth in C.P.L. § 160.59(7), and granted the defendant's application.
Since the sealing did not affect law enforcement's access to the defendant's conviction or to any application he can make for a firearms license, the COR Judge Pickett granted in 2011 remains a barrier to the defendant possessing, owning, and carrying a firearm. The court now considers the second part of the defendant's 2018 application, his request to modify the COR. Judge Warin did not address the portion of the defendant's application to modify his COR, and the case was directed to this Court in March, 2019. Mr. Winslow was again assigned to represent the defendant, and a schedule was set for the parties to submit documentation and to make argument on the requested modification. All papers were submitted by late July, including documents the defendant provided on July 31, 2019. Many, though not all, of the documents had also been provided in support of the defendant's past applications. The parties have agreed that the 2018 Department of Probation investigation is sufficiently recent that an update is unnecessary.
July 31, 2019 Hearing
The Court conducted a hearing on July 31, 2019, during which the Court heard from the defendant, his counsel Mr. Winslow, and ADA Mark Berkowitz, on behalf of the People.
The defendant explained that he seeks the requested modification because it would allow him to apply to the firearms review board for a firearms license. If the license is granted, it will enable Mr. B. to pursue additional employment opportunities, both with the Department of Corrections currently, as well as other opportunities with private companies once he retires from the Department, should he desire to supplement his pension income. Letter from Mr. Winslow to the Court, dated Apr. 24, 2019.
Mr. Winslow argued that the requested relief would allow Mr. B. “to feel like his life has returned back to normal.” Tr. at 9:7. The defendant himself complained of “feel[ing] like I'm medically monitored” while at work. Tr. at 27:16. The defendant, through his lawyer, expressed a desire to be “put back into a position he was in before all this started,” Tr. at 44:11-12, echoing his wish for exoneration that was contained in his 2007 COR application and again in his application for sealing in 2018.
The People oppose the requested relief, contending that the defendant “failed to demonstrate that restoring defendant's privilege to carry a firearm is consistent with defendant's rehabilitation and consistent with the public interest.” People's Affirmation, ¶ 16 (Jul. 1, 2019). To support their position, the People note that Mr. B. has been able to rebuild his career and earn a significant income in the absence of a firearms license, such that one is not necessary for his rehabilitation. As to the public interest, the People report that Ms. M., the defendant's stepdaughter and the complainant in the 2003 case, “is still presently very much in fear of the defendant.” People's Memorandum of Law, p.10 (Jul. 1, 2019). The People state that this information was obtained during a recent interview of Ms. M., but do not set forth further facts explaining the basis for Ms. M.'s continuing fear. Id.
At the hearing, the parties also contested Mr. B.'s current financial situation. The People asserted, and Mr. B. did not dispute, that his average income for the last three years is approximately $154,000 a year, which would give Mr. B. an annual pension, should he retire, of approximately $75,000. Tr. at 21:8-11; 35: 5-8. Mr. B. argues that this income is nonetheless a hardship for him because of various financial obligations, including child support and a mortgage on a house he inherited in 1991 where he currently has tenants. See Tr. at 34:12-13.
The defendant also described the circumstances leading up to the 2003 conviction, and how the family dynamic around that incident has affected him. While it is clear that he is deeply saddened by the loss of his relationship with his biological children, the Court does not believe that granting the requested relief would improve that situation.
Pursuant to Article 23 of the Corrections Law, a COR must not be granted unless the Court makes three findings: 1) that the person who is granted the certificate is an eligible offender; 2) that granting the certificate is “consistent with the rehabilitation of the eligible offender”; and 3) that granting the certificate “is consistent with the public interest.” Corr. L. § 702(2).
This Court is satisfied that the defendant is an “eligible offender” as that term is defined by the Corrections Law. However, the Court concludes that granting the requested relief would not further his rehabilitation, nor would it be in the public interest. Compare People v. Hodge, 36 Misc. 3d 1218(A), 2012 WL 3055511 (Sup. Ct. Bronx Co. 2012) (“[T]he Court finds that Defendant's possession of a gun is not consistent with his rehabilitation or in the public interest.”).
“It is not disputed that the relief provided under [Corrections Law] section 702 is discretionary in nature and should not be bestowed upon individuals convicted of a crime unless certain standards and requirements are met.” Da Grossa v. Goodman, 72 Misc. 2d 806, 808, 339 N.Y.S.2d 502 (Sup. Ct. N.Y. Co. 1972). “The laudatory purpose behind the statute is to facilitate the return of first offenders to society as useful citizens.” Id. What it does not do is “eradicate[ ] or expunge[ ] the underlying conviction.” Id. at 809, 339 N.Y.S.2d 502. See also, Corr. L. § 706. The defendant has placed, as a principal goal of his application, his desire to be restored to the position he was in prior to his contacts with the criminal justice system and to feel as though his life has regained something that has been lost. However, the purpose of granting a COR is not to set aside a conviction, or to make an offender's life feel as if it were back to normal, or even to tell an eligible offender that he's “a good guy.” Rather, a COR serves the purpose of aiding an offender's rehabilitation by removing automatic blocks to his pursuing rehabilitative steps.
Here, when the Court asked the defendant about the specific circumstances of his crime, he never acknowledged the wrongfulness of what he had done, or any understanding of how what he had done had contributed to the negative dynamic in his family or caused harm to his family, which he now characterizes as solely the fault of his former wife. Acceptance of guilt and the wrongfulness of one's actions is the first step toward rehabilitation. However, even now, 16 years after committing the criminal conduct in this case, the defendant looks to blame others for the consequences of what he himself did. Rather than being at the end of his rehabilitative journey, the defendant has barely begun it, and the Court is hard pressed to see how modifying the COR to allow him to possess firearms will in any way aid that rehabilitative process.
Despite the defendant's continued lack of progress toward the mental and psychological aspects of his rehabilitation, the defendant has managed to rebuild his life in outwardly substantial, tangible ways. Since the 2003 conviction, Mr. B. has maintained full-time employment with the Department of Corrections. His salary has seen regular increases during that time, he has been recognized as an Employee of the Month, and he is now eligible for retirement. The defendant argues that he would be eligible for different posts, which may have additional opportunities for professional development or promotion, within the Department of Corrections if he were allowed to carry a firearm. He also argues that, because he is eligible for retirement, he would be able to supplement his pension income with employment, employment which would presumably be higher-paying if he is licensed to carry a firearm. The defendant claims that access to higher-paying positions is necessary because he “lives paycheck to paycheck.” Tr. at 8:8.
Whether the defendant's income is sufficient to meet his financial obligations, it is clear from the evidence before the Court that Mr. B. has been gainfully employed, and that his employment has afforded him a substantial salary and significant benefits, not least of which includes his pension. The Court also notes that the US Census estimated that the average median household income in New York City in 2017 was $57,782, roughly one-third of the defendant's salary that year. United States Census Bureau, Quick Facts New York City, available at census.gov/quickfacts/fact/table/newyorkcitynewyork/PST040218 (last visited Aug. 13, 2019). While lack of a firearms permit may have limited Mr. B.'s eligibility for certain assignments, it clearly has not prevented Mr. B. from earning a living or pursuing a valuable career. Nor has it barred him for earning favorable recognition on the job, as demonstrated by his recent Employee of the Month certificate. There is no basis for finding that the requested modification to the COR will advance Mr. B.'s rehabilitation.
The defendant also posits that the requested relief is necessary for self-protection. Tr. at 36:22-23; 37:3. The Court notes, however, that the defendant has not identified any incident in his law enforcement career in which he encountered an individual under circumstances necessitating self-defense by use of a handgun, nor has the defendant identified any specific circumstances which would lead the Court to believe that such self-defense is likely to be necessary. The Court sees no benefit to the defendant's mental and psychological rehabilitation from granting him relief from the firearms prohibition, and it appears that lifting the firearms ban is unnecessary to his professional rehabilitation.
Nor does the Court deem it in the public interest to grant the requested relief. The defendant does not appear to be at risk of becoming a public charge if he is not able to increase his income by becoming licensed to carry a gun. The Court has not been presented with any evidence that public safety would be improved by the requested modification. The only statement before the Court from an individual besides Mr. B. was from O.M., the complaining witness in the case from which the instant conviction stems. Ms. M., as the People represented to the Court, very much opposes the requested relief. No other member of the public came forward, and no other public interest was alleged, that would be favorably served by the requested relief. There is no evidence before the Court that granting the COR modification would serve the public interest.
For the foregoing reasons, the application is denied.
This constitutes the Decision and Order of the Court.
Michael D. Kitsis, J.
Docket No: 2003KNxxxxxx
Decided: September 06, 2019
Court: Criminal Court, City of New York.
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