People v. Harold Jones
AD1 order dated February 5, 2013, reversing a lower court order reducing count of second-degree weapon possession to third-degree weapon possession. Decision below: 103 AD3d 411, 959 NYS2d 73. Graffeo, J., granted leave May 6, 2013.
ISSUE PRESENTED: Whether the People are precluded from prosecuting a defendant for second-degree weapon possession, under Penal Law §265.03(3), when he has previously been convicted of a crime but that possession takes place in his home or place of business and, instead, can only prosecute that defendant for third-degree weapon possession under Penal Law §265.02(1)? (Assigned counsel: David Klem and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
Issue before the Court: Whether, under PL Sec. 265.03(3), a defendant is entitled, despite his prior conviction, to the ”home or business” exception in the definition of second-degree weapon possession.
Held: Such a person may not rely on the “home or business” exception in a prosecution under PL Sec. 265.03 (3).