In re Jonathan V.

55 A.D.3d 273, 865 N.Y.S.2d 44
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 30, 2008
StatusPublished
Cited by4 cases

This text of 55 A.D.3d 273 (In re Jonathan V.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jonathan V., 55 A.D.3d 273, 865 N.Y.S.2d 44 (N.Y. Ct. App. 2008).

Opinion

OPINION OF THE COURT

Catterson, J.

This case presents the question of whether the presumption of constructive possession of a firearm can be applied to persons riding on a charter bus that was used to transport an extended family from Staten Island to a violent rendezvous in Harlem. At the outset, we note that as to each appellant, the court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. (See People v Danielson, 9 NY3d 342, 348-349 [2007].) There is no basis for disturbing the court’s determinations concerning credibility.

The record reflects that Luna Suarez, mother of the appellant Jonathan V, worked for Atlantic Express bus company as a dispatcher. The operating manager for Atlantic Express testified that the driver of the bus, Linwood Saey, was assigned to bus number 612 on a “commuter run” between Staten Island and Madison Avenue south of 59th Street. This run was only made in the morning and Saey had no authority to remove the bus from the Atlantic Express yard located in Staten Island. The manager testified that after Suarez appeared agitated while making a phone call, she asked to leave work early and asked Saey to drive her home. The record indicates that the manager did not anticipate that Saey would take a full size purple charter bus to drive Suarez, rather than a company car. Suarez and Saey then traveled to various locations throughout Staten Island where members of Suarez’s extended family, including the three appellants, boarded the bus. After leaving Staten Island, the charter bus was driven to Harlem in order to pick up Suarez’s daughter. Shortly after arriving in Harlem, a shootout ensued.

When the police arrived at 155th Street between Park and Madison Avenues in response to a call of “shots fired” they found a man lying face up in the street bleeding from a gunshot [276]*276wound to the head. A witness stated that the people that might have been involved had fled on a purple charter bus.

The police received information that a charter bus matching that description was parked in front of a nearby hospital. Upon arriving at the hospital, the police saw a group of people exit the bus, including the three minor appellants, two of whom had gunshot wounds. The officers entered the bus and found pools of blood, baseball bats, bloody clothing, and a loaded pistol in plain view on the floor. The bus driver and all the passengers on the bus, including the three appellants, were arrested.

Appellant Jonathan Y contends that the statutory presumption of possession (Penal Law § 265.15 [3]) is inapplicable by its terms, because the bus where the weapon was discovered was a “public omnibus” used to fulfill a contract with the New York City Department of Transportation. Appellant Drew C. contends that a bus is not an automobile, and that the absence of a definition of “public omnibus” in the statute renders it unconstitutionally vague. They both suggest that the weapon may have been left on the bus by any of “countless Staten Island commuters” who had used the bus that morning.

The Family Court correctly concluded that the automobile presumption applied because the charter bus, while clearly a “public omnibus” when it ran its route on the morning of November 15, 2006, was no longer being used as such when the gun was found. The court noted:

“Not only did the bus stop fifty-six blocks beyond the DOT stop, but the statements by [Michael B.] and [Jonathan V] show that they understood that the bus was taking them on a family outing, which was closed to the general public . . . Another clear indication to [them] of the bus’ private status at the pertinent time is that neither [one] paid a fare to ride. Overall, given that the 612 bus was operating off of [its] public route, and let passengers come on and off the bus at their leisure, any reasonable person, including [the appellants], would have understood that the bus was being used in a private capacity.”

Section 265.15 of the Penal Law provides, in relevant part, “3. The presence in an automobile, other than ... a public omnibus, of any firearm ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found.” (See People v [277]*277Verez, 83 NY2d 921 [1994] [presumption applied where weapon was found between front bucket seats of a van]; People v Lemmons, 40 NY2d 505 [1976]; Matter of Mark S., 274 AD2d 334 [1st Dept 2000] [ownership or possession by one occupant “does not, by itself, negate the statutory presumption of possession by the other occupants as well”].)

The Vehicle and Traffic Law defines a “bus” as a “motor vehicle having a seating capacity of fifteen or more passengers in addition to the driver and used for the transportation of persons” (§ 104). It separately defines “omnibus” as a “motor vehicle used in the business of transporting passengers for hire,” other than agricultural workers (§ 126).

The legislative history of the statutory presumption, which was originally enacted in 1936, indicates that the “public omnibus” exception was included to appease legislators who were concerned “as to the dire consequences that might under the earlier bill result [s¿c] to an innocent person riding in a public omnibus, travelling in some vehicle like a motorboat or railroad train or airplane” (May 2, 1936 letter from Committee on Criminal Courts to Governor Herbert Lehman, Bill Jacket, L 1936, ch 390). The legislative history also indicates that an earlier draft exempted omnibuses carrying more than seven passengers, but that the size limitation was removed. The legislative history thus supports the conclusion that the exception only applies to buses that are being used as public omnibuses to transport passengers for hire.

Moreover, as a matter of statutory construction, the Legislature’s creation of an exclusion for “public omnibuses” implies that private omnibuses or buses of other types are not excluded from the automobile presumption. (McKinney’s Cons Laws of NY, Book 1, Statutes § 213, Comment [“there is a strong implication that what is excepted would have been within the prohibition if it had not been excepted,” and “(w)hen one or more exceptions are expressly made in a statute, it is a fair inference that the Legislature intended that no other exceptions should be attached to the act by implication”].)

As for Drew C.’s contention that the statute is unconstitutionally vague because it does not define the term “public omnibus,” the appellant has not overcome the strong presumption of constitutionality. (See People v Tichenor, 89 NY2d 769 [1997], cert denied 522 US 918 [1997].) The absence of a definition in the Penal Law does not render the statute impermissibly vague, since the term is given its legal meaning as defined in the juris[278]*278prudence of the state. (See People v Reed, 265 AD2d 56, 66 [2d Dept 2000], lv denied 95 NY2d 838 [2000].) As so understood, “the statute [is] sufficiently clear to apprise a person of ordinary intelligence that the sort of conduct in which the defendant engaged comes within the statute’s prohibition.” (People v Garcia, 29 AD3d 255, 261 [1st Dept 2006], lv denied 7 NY3d 789 [2006] [definition of “companion animal” not unconstitutionally vague]; see also United States v Harriss, 347 US 612, 617 [1954].)

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Cite This Page — Counsel Stack

Bluebook (online)
55 A.D.3d 273, 865 N.Y.S.2d 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jonathan-v-nyappdiv-2008.