People v. Rebecca Ruiz (decided December 15, 22)

Issue before the Court: Whether Ms. Ruiz was entitled to a temporary and lawful possession jury charge where she had been charged with CPW2.

Factual Background: The facts are tragic. The defendant, Ms. Ruiz, had previously been attacked by her estranged husband in her home. Her current boyfriend told Ms. Ruiz to leave her home to escape her estranged husband and warned her not to open the door for anyone before she left with her children, ages four to thirteen. Ms. Ruiz was awakened by a person pounding on her door, identifying himself as her husband. She frantically searched through her kitchen drawers and found a gun which her boyfriend had left, unbeknownst to her. She then warned the person at the door to leave, or she would shoot. When the person continued to try to get inside, she filed a single shot at the closed, windowless metal door, striking and killing the person on the other side, who happened to be her boyfriend and not her estranged husband.
Ms. Ruiz was acquitted of murder on justification grounds but convicted of CPW 2 after the court refused to charge temporary and lawful possession.

Held: In a unanimous decision, the Court held that Ms. Ruiz was not entitled to a temporary and lawful possession charge because there was no reasonable view of the evidence that she had not used the gun in a dangerous manner.

CAL Observes: This is a strange and unsatisfying case. It stems from the rule, established by the Court of Appeals in People v. Almodovar, 62 N.Y.2d 126 (1984), that, while a justification defense can excuse the use of a weapon, it cannot excuse the possession of that same weapon, even where it is used in self-defense. Instead, the common law defense of “temporary and lawful possession” applies in weapon possession cases. That defense operates to negate the unlawful possession element of CPW offenses, and requires record proof of two elements: (1) that there was a legal excuse for the defendant to possess the weapon, and; (2) that the weapon was not used in a dangerous manner. People v. Williams, 50 N.Y.2d 1043, 1044-45 (1980).

The Court of Appeals’ most recent examination of the interaction between justification and temporary lawful possession came in People v. Williams, 36 N.Y.3d 156 (2020). In that case, as here, the defendant was acquitted of homicide charges on justification grounds but convicted of CPW. The question before the Court was whether the defendant was entitled to a temporary and lawful possession charge. The Court ruled he was not—the defendant impermissibly “armed himself in anticipation of a potential confrontation” rather than during the course of an active confrontation during which
his life was threatened. There was, therefore, no legal excuse for his possession of the weapon.

The Court left open some important questions. First, the majority and Judge Wilson, concurring in the result, disagreed about whether a person who obtains a weapon under immanent threat of harm but who does not actually disarm their attacker can be held to have obtained the weapon lawfully. Second, the majority did not reach the question of whether the defendant’s justified use of the weapon was “dangerous.” Judge Rivera, concurring in the result, would have held that it was not; Judge Wilson, on the other hand, suggested that the “rule against ‘dangerous’ use of the weapon . . . does not generally apply in situations when a defendant uses a weapon in justified self-defense, a use which is necessarily dangerous.’”

This case presented the Court the opportunity to answer these questions. It did not. Perhaps because of complicated LaFontaine issues (which took up much of the oral argument in the case), the Court did not reach the question of whether Ms. Ruiz obtained the gun lawfully and so the decision does not clarify that question.

Instead, the Court held that, because Ms. Ruiz “fired the gun blindly through a closed, windowless door, endangering anyone who might have been on the other side, striking and killing the victim, and creating a risk that the bullet would ricochet off the metal door and potentially injury her children” she had used it dangerously. But the only thing this case really clarifies is that the justified use of a weapon in self-defense is not necessarily a non-dangerous use in the temporary and lawful possession context. Unfortunately, the Court provided no guidance as to how to assess dangerousness, saying merely that “no single fact is dispositive.”

This case (in addition to being an atrocious exercise of prosecutorial discretion) provides additional fodder for the well-established argument that a justification defense should be available to possessory offenses, and that Almodovar should be overruled. See Richard A. Greenberg, et al., New York Practice Series – New York Criminal Law (4th Ed.), § 33:27 (“[T]he authors of this section wholeheartedly endorse” the view that “the rule of Almodovar . . . , i.e., justification can never be a defense to a possessory crime, should be re-examined by either the Court of Appeals or the Legislature, and ultimately rejected.”). The need for reappraisal is especially urgent in light of the Supreme Court’s unequivocal holding in New York State Rifle & Pistol Association, Inc. v. Bruen, that the Second Amendment protects “an individual’s right to carry a handgun for self-defense” inside or outside the home. 142 S. Ct. 2111, 2122 (2022). New York’s rule is less forgiving of the possession of weapons than their actual use. Although Bruen was decided before the argument in this case, it was not mentioned.