State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 67 The People &c., Respondent, v. Carlos L. David, Appellant.
Guy A. Talia, for appellant. Lisa Gray, for respondent. Hon. Letitia James, New York State Attorney General, intervenor.
HALLIGAN, J.:
Defendant Carlos L. David challenges his conviction for two counts of criminal
possession of a weapon in the second degree (see Penal Law § 265.03 [3]) on several
grounds. He argues that the police recovered the handguns that gave rise to his conviction
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during an invalid inventory search, and that Supreme Court improperly allowed prejudicial
testimony at his trial. Neither argument provides grounds for reversal. David additionally
argues that Penal Law § 265.03 (3) is facially unconstitutional under New York State Rifle
& Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). This argument is unpreserved, and for
the reasons set forth below, we do not reach it.
Late on a September evening in 2017, a Rochester Police Department officer
observed David driving an SUV without its headlights on and pulled him over. David was
alone in the car, which was registered to a woman who was not present. Upon learning
that David possessed only a learner’s permit, not a valid driver’s license, and noting that
David had parked partially in the bike lane, the officer decided the car had to be towed.
The officer then conducted an inventory search of the vehicle and recovered two handguns
and a large amount of cash.
David was charged with two counts of criminal possession of a weapon in the
second degree under Penal Law § 265.03 (3). He moved to suppress the handguns as the
fruit of an invalid search. At the Dunaway/Mapp/Huntley hearing, the officer read into the
record Rochester Police Department Regulations General Order 511 (E), which provides
that, “[w]hen deciding whether to tow a vehicle for safekeeping, members will take into
consideration such factors as: the crime rate in the area and proximity of the
operator/owner’s residence, valuables in the vehicle, and whether or not another person is
readily available who can operate the car.” The officer testified that he decided to tow the
car because it was illegally parked in a no-parking area, partially blocking the bike lane
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and the flow of traffic. He also stated that he did not call the car’s owner and did not realize
that the address to which the car was registered was merely three blocks away.
The suppression court rejected David’s argument that the officer failed to follow
police department protocol by not considering alternatives to towing. The court “fully
credit[ed]” the officer’s testimony, holding that “[a]s the officer discovered that the
defendant failed to possess a valid driver’s license and his vehicle was improperly parked,
he was authorized to tow the vehicle.” The court further found that the officer had
“appropriately towed the defendant’s vehicle pursuant to the General Orders of his police
department.”
In advance of trial, David also moved to exclude evidence of the cash found in the
vehicle on the grounds that its prejudicial nature outweighed its probative value. The
People responded that the cash tended to show David’s connection to the car, and therefore
that he knowingly possessed the guns, and Supreme Court denied the motion. David was
convicted of both counts and appealed.
The Appellate Division affirmed, reasoning that “the suppression hearing testimony
established that it is the policy of the Rochester Police Department to tow a vehicle and
conduct an inventory search when, following a traffic stop, there is no licensed driver
present,” and that because David did not have a driver’s license and was the sole driver
present, the officer properly decided to tow the vehicle. The Appellate Division further
concluded that the record did not support an inference that the inventory search was a mere
pretext to uncover incriminating evidence. After the U.S. Supreme Court decided Bruen,
but before the Appellate Division decided David’s appeal, David had moved for leave to
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file a supplemental brief arguing that Bruen rendered Penal Law § 265.03 (3) facially
unconstitutional. The Appellate Division denied that motion and did not address Bruen.
A Judge of this Court then granted leave to appeal.
I.
We begin with David’s Second Amendment challenge. On appeal, the defendant
argues that the statute under which he was convicted is facially unconstitutional in light of
Bruen because a defendant cannot be properly convicted solely on proof of the statutory
elements set forth in Penal Law § 265.03 (3), which do not include the lack of a New York
firearm license. He further contends that even if Penal Law § 265.03 (3) is read together
with Penal Law § 265.20 (a) (3), which exempts from prosecution a person with a New
York firearm license, the statutory scheme impermissibly places the burden of production
to show licensure on the defendant once the People have merely shown conduct
presumptively protected by the Constitution—to wit, public carry of a firearm.
Parties are generally required to preserve all claims for appellate review by raising
them in the trial court, including challenges involving a criminal defendant’s federal
constitutional rights (see People v Tutt, 38 NY2d 1011 [1976]), and the constitutionality of
statutes (see e.g. People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408 [2006]). In
People v Cabrera (decided today), we hold that an unpreserved Second Amendment
challenge to Penal Law § 265.03 (3) based on Bruen is unreviewable, and to the extent
David likewise argues that Bruen renders unconstitutional New York’s entire licensing
regime, and in turn its statutory prohibition on criminal possession of a weapon, that
challenge is unreviewable for the same reasons.
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David also raises an additional claim: that his convictions violate due process by
treating presumptively innocent conduct as unlawful and shifting the burden of production
to David to show otherwise. As an initial matter, we read the statutory scheme differently
than the dissent does. Because the licensure exemption is not found within the text of the
relevant Penal Law provision criminalizing possession of a weapon, it presumptively
operates as a “proviso that need not be pleaded but may be raised by the accused as a bar
to prosecution or a defense at trial” (People v Santana, 7 NY3d 234, 236 [2006]; see also
id. at 236-237 [“(E)ssential allegations are generally determined by the statute defining the
crime”]; People v Davis, 13 NY3d 17, 31 [2009]).1 In contrast to the “home or place of
business” exception found within the text of Penal Law § 265.02 (4), which we have
construed as an element of the relevant offense (see People v Rodriguez, 68 NY2d 674,
675 [1986], revg on dissenting op of Lazer, J., 113 AD2d 337, 343-348 [2d Dept 1985]),
the licensure exemption is not found within the text of Penal Law § 265.03 (3). Rather, the
Legislature placed it within Penal Law § 265.20, alongside myriad other exemptions—
including possession by a state prison warden in pursuit of official duty (Penal Law §
265.20 [a] [2]), persons employed in fulfilling defense contracts with the federal
government (Penal Law § 265.20 [a] [1] [e]), and a person voluntarily surrendering a
weapon (Penal Law § 265.20 [a] [1] [f])—that would not reasonably be viewed as elements
1 Hughes, relied upon by the dissent, simply held that Section 265.03 and the licensure exemption, read together, prohibit only unlicensed possession (People v Hughes, 22 NY3d 44, 50 [2013]), not that lack of a license is an element of a criminal possession charge. If Hughes had indeed held that lack of a license is an element of the crime charged here, that would be all the more reason to require preservation of this argument. -5- -6- No. 67
of the various offenses criminalizing possession of a weapon. “[C]ommon sense and
reasonable pleading” suggest the Legislature did not intend that the People plead and prove
every one of these exemptions (Davis, 13 NY3d at 31), and no party has pointed us to any
sign of legislative intent to treat the licensure exemption alone as the sole element among
that list.
Turning to the impact of Bruen, the Supreme Court’s decision effected a substantial
change in Second Amendment jurisprudence, as we note in Cabrera (decided today), and
David raises meaningful questions about New York’s statutory scheme in its wake (cf.
Commonwealth v Guardado, 491 Mass 666, 206 NE3d 512 [Apr 13, 2023] [holding that
Massachusetts statute prohibiting public possession of loaded firearms but allowing
affirmative licensure defense violated due process because lack of license must be essential
element of crime under Bruen]). But the “mode of proceedings” exception set forth in
People v Patterson, 39 NY2d 288 (1976), on which David relies, does not provide a basis
for reaching his unpreserved arguments.
This Court has recognized a “very narrow” exception to the preservation
requirement for a “tightly circumscribed class” of nonwaivable errors (People v Kelly, 5
NY3d 116, 119-120 [2005]), that go to “the essential validity of the proceedings conducted
below” (Patterson, 39 NY2d at 295-296). In Patterson, this Court reviewed an
unpreserved due process challenge to a statute that placed the entire burden of proof—both
the burden of production and the ultimate burden of persuasion (see Schaffer ex rel.
Schaffer v Weast, 546 US 49, 56 [2005])—on the defendant to establish extreme emotional
disturbance as an affirmative defense to murder. We reasoned that “[i]f the burden of proof
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was improperly placed upon the defendant, [the] defendant was deprived of a properly
conducted trial, the distribution of the burden of persuasion being just as significant as the
proper composition of the jury” (id. at 296). And we applied an exception to the need for
a timely objection “to ensure that criminal trials are conducted in accordance with the mode
of procedure mandated by Constitution and statute” (id. at 295-296).
This case does not fit within the mode of proceedings exception outlined in
Patterson. First, our cases following Patterson have confirmed that the “mode of
proceedings” exception does not categorically exempt from preservation all claims related
to the shifting of burdens at trial. To the contrary, we have repeatedly concluded that errors
that fall short of expressly shifting the burden of persuasion to the defendant must be timely
preserved (see e.g. People v Thomas, 50 NY2d 467, 472 [1980] [no mode of proceedings
exception for unpreserved argument that a permissive presumption on intent violated due
process to the extent it could reasonably be interpreted by the jury to shift the burden of
proof to defendant]; People v McKenzie, 67 NY2d 695, 697 [1986] [no mode of
proceedings exception for unpreserved argument that statutory presumptions regarding
possession and intent in Penal Law § 265.15 (3) and (4) unconstitutionally shifted the
burden of proof to defendant because “the charge contained no express burden-shifting
language”]; People v Gray, 86 NY2d 10, 21-22 [1995] [no mode of proceedings exception
for unpreserved argument that failure to charge jury that People must prove knowledge of
the weight of contraband possessed lessened burden of proof]; People v Easley, 42 NY2d
50, 58-59 [1977] [no mode of proceedings exception for unpreserved argument that burden
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of proving knowledge of alleged victim’s mental defect was unconstitutionally placed upon
defendant, where the defendant failed to place the affirmative defense in issue]).
This line of cases fully accords with Hankerson v North Carolina, in which the U.S.
Supreme Court endorsed applying a state law preservation bar even where the defendant
was impermissibly forced to bear the burden of persuasion to negate an essential element
(see 432 US 233, 244 n 8 [1977] [“The States, if they wish, may be able to insulate past
convictions by enforcing the normal and valid rule that failure to object to a jury instruction
is a waiver of any claim of error (in the burden of proof)”]).
Second, Penal Law § 265.03 (3) differs from the statute in Patterson in that it shifts
only the burden of production to the defendant. Critically, the burden of persuasion on
licensure always remains with the People (see Penal Law § 25.00 [1]). That distinction
matters for due process purposes (see Mullaney v Wilbur, 421 US 684, 702 n 31 [1975]
[“Shifting the burden of persuasion to the defendant obviously places an even greater strain
upon him (than shifting the burden of production) since he no longer need only present
some evidence with respect to the fact at issue; he must affirmatively establish that fact”]).
Because the shift in the burden of production alone effectuated by Penal Law § 265.03 (3)
does not impinge on the validity of a proceeding to the same extent as requiring the
defendant to bear the entire burden of proof, Patterson’s preservation reasoning does not
have full force here.2
2 We do not decide whether shifting the burden of production to the defendant could amount to a due process violation (cf. dissenting op at 4-5). We note only that doing so
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Third, unlike the pure mode of procedure question in Patterson, David’s argument
rests on asserted violations of both the Second Amendment and due process—a hybrid
question of substance and procedure. As noted, New York’s law places only the burden of
production on a defendant to show licensure, a practice that is generally permissible (see
e.g. People v Laietta, 30 NY2d 68, 74-76 [1972] [no violation of constitutional due process
in placing even the burden of persuasion on the defendant with respect to the defense of
entrapment]; Mullaney, 421 US at 701 n 28 [“Many States do require the defendant to show
that there is ‘some evidence’ indicating that (a defense is applicable) before requiring the
prosecution to (disprove the defense) beyond a reasonable doubt. Nothing in this opinion
is intended to affect that requirement”] [internal citations omitted]). David’s contrary
argument rests squarely on Bruen; he contends that in light of Bruen, the Second
Amendment makes lack of licensure an essential element of the offense and bars a shift in
the burden of production on that point. For the same reasons that we do not reach the
Bruen-based Second Amendment arguments absent preservation (see People v Cabrera
[decided today]), we reach the same conclusion regarding David’s due process challenge,
which is firmly grounded in his understanding of the scope of the Second Amendment.
Nor is David’s challenge reviewable on the grounds that the accusatory instrument
was facially defective in failing to plead all constitutionally required elements, thereby
depriving Supreme Court of jurisdiction. In such circumstances, we have found that
preservation is required (see Baumann & Sons Buses, 6 NY3d at 408 [“For this Court to
does not raise concerns of the same magnitude as shifting the burden of persuasion on an element of a crime. -9- - 10 - No. 67
consider a constitutional claim in the guise of an argument that the accusatory instrument
is facially insufficient would permit an end run around the parties’ obligation to preserve
constitutional claims before the trial court”]). The cases David relies upon to argue
otherwise are inapposite (see People v Martinez, 81 NY2d 810, 812 [1993] [conviction of
crime that is a legal impossibility]; People v Tannenbaum, 23 NY2d 753 [1968] [conviction
under substantive criminal statute that U.S. Supreme Court had expressly held was
unconstitutional]).
David raises significant questions about whether, in light of Bruen, lack of licensure
is an essential element of New York’s criminal possession of a weapon offense and must
therefore be charged to the jury in all cases. But because he did not preserve these
arguments, they must await another day.
II.
Turning to David’s evidentiary challenges, law enforcement officers may conduct
an inventory search of an impounded vehicle without a warrant, so long as the search is
conducted according to “reasonable police regulations relating to inventory procedures
administered in good faith” (Colorado v Bertine, 479 US 367, 374 [1987]; see also People
v Gomez, 13 NY3d 6, 10 [2009] [“(A)n inventory search should be conducted pursuant to
an established procedure clearly limiting the conduct of individual officers that assures that
the searches are carried out consistently and reasonably”] [internal quotation marks
omitted]). David contends that under the Rochester Police Department’s protocol, the
officer was required to ask where the vehicle’s owner lived and whether she was available
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to retrieve the car but did not do so, and that the suppression court accordingly erred by
denying his suppression motion.
David’s argument rests on an overly expansive reading of General Order 511 (E),
which requires officers to consider alternatives to towing, including whether there is
another possible driver and the proximity of the owner/operator’s residence. That
provision does not impose on officers an affirmative duty to inquire whether any
alternatives exist, beyond those that are raised for their consideration or are otherwise
apparent. While David points to several facts that could have weighed against
impoundment if made known to the officer during the stop, the record is undisputed that
David did not inform the officer of these facts at the time. The officer did not realize that
the owner’s residence was nearby; nor did David tell him. Moreover, David could not
legally drive the car away from the scene, and there was no other licensed driver present.
In some circumstances, an officer may need to explore alternatives to impoundment, but
here, the decision to tow the vehicle was not in contravention of the police department’s
policy (see People v Walker, 20 NY3d 122, 125 [2012] [“where no facts were brought to
the (officer’s) attention to show that impounding would be unnecessary,” officers are not
required to take further steps, even where a potential alternative driver is present on the
scene]).
Relying on People v Gomez, 13 NY3d 6 (2009), David also argues that it was
particularly unreasonable to impound and then search his vehicle given that he was pulled
over for a minor driving infraction, the car was not stolen nor was his license revoked, he
was not under the influence of alcohol or drugs, and the car was parked only because the
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police had pulled him over and only partially impeded the bike lane. But David does not
contest that he could not legally drive the car and there was no other authorized and capable
driver present. Accordingly, the decision to tow was not unreasonable, and thus neither
was the search.
Finally, David argues that Supreme Court abused its discretion in allowing
testimony related to the cash found in the same compartment as the guns because the
evidence was more prejudicial than it was probative. “Evidence is relevant if it has any
tendency in reason to prove the existence of any material fact” (People v Frumusa, 29
NY3d 364, 371 [2017] [internal quotation marks omitted]), but trial courts retain discretion
to “exclude relevant evidence if its probative value is outweighed by . . . undue prejudice
to the opposing party” (People v Primo, 96 NY2d 351, 355 [2001]). The People argue that
the presence of the cash in the same location as the guns made it more likely that David
knew the guns were present. While the connection between these two facts may be tenuous
and the probative value thus limited, the risk of prejudice was low given that the testimony
about the cash was brief and accompanied the general list of items found in the inventory
search; for that reason, any error in allowing the testimony was harmless.
Accordingly, the order of the Appellate Division should be affirmed.
- 12 - RIVERA, J. (dissenting):
The lack of a license to possess a weapon is an essential element of New York’s
criminal weapons possession laws. That was made clear in People v Hughes (22 NY3d 44,
50 [2013]). As with the elements of any other crime, the prosecution bears the burden to
establish this element beyond a reasonable doubt. Defendant Carlos L. David’s conviction
should be reversed and a new trial ordered because the jury was not charged on this element
and made no findings that defendant possessed an unlicensed weapon. Defendant thus need
not rely on the United States Supreme Court majority’s holding in New York State Rifle &
Pistol Assn., Inc. v Bruen (142 S Ct 2111, 2118 [2022]) that the Second Amendment
guarantees the right to publicly carry a weapon for self-defense, but whether under Hughes
or Bruen, the outcome is the same.
A jury convicted defendant of two counts of criminal possession of a weapon in the
second degree under Penal Law § 265.03 (3). That section provides that:
“A person is guilty of criminal possession of a weapon in the second degree when [they] possess[es] any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business” (Penal Law § 265.03 [3]).
As relevant to my discussion, the court instructed the jury on the elements of the charged
offenses as follows:
“In order for you to find the defendant guilty of these crimes, the People are required to prove from all the evidence in the case beyond a reasonable doubt each of the following four elements: That on or about September 5, 2017, in the County of Monroe, the defendant, Carlos David, possessed a firearm. The first count is a .45 auto, second count is a 9—millimeter; two, that the defendant did so knowingly; three, that the firearm was loaded and operable; and four, that such possession did not take place in the defendant’s home or place of business.”
During the pendency of his appeal at the Appellate Division, a majority of the
United States Supreme Court in Bruen struck down the “proper cause” requirement of New
York State’s firearm licensing regime. The Appellate Division did not address the impact
of Bruen on defendant’s appeal (People v David, 209 AD3d 1276 [4th Dept 2022]).
On appeal to us, defendant claims that he was convicted for the constitutionally-
protected conduct of possessing a handgun in public. According to defendant, Penal Law
§ 265.03 (3) is facially unconstitutional because it does not expressly state unlicensed
possession as an element of the crime. He also claims that the statute presumes guilt for
innocent conduct and violates due process by shifting the burden to a defendant to justify
public possession.
For the reasons I discuss in People v Garcia, decided today, defendant’s Second
Amendment challenges are preserved.1 I now turn to the merits of those claims.
Facial Challenge
Defendant’s facial challenge is without merit. According to defendant, the Penal
Law criminalizes what the Bruen majority held to be protected by the Second
Amendment—possession of a loaded handgun in public. Defendant correctly summarizes
the majority’s holding in Bruen, but defendant’s facial challenge is based on an erroneous
interpretation of our law. Defendant incorrectly asserts that Penal Law 265.20 (a) (3)
requires that the prosecution establish only four elements to prove guilt: 1) a defendant’s
knowing, 2) possession, 3) of a loaded and operable firearm, 4) outside their home or place
of business. Even if the text of the Penal Law could be read as defendant claims, our
decisional law makes clear that the lack of licensure is an essential element of criminal
1 I have no occasion to opine on whether defendant’s claims also fall within the mode-of- proceedings exception to preservation. -3- -4- No. 67
weapon possession. In People v Hughes we declared that “New York’s criminal weapon
possession laws prohibit only unlicensed possession of handguns. A person who has a
valid, applicable license for [their] handgun commits no crime” (22 NY3d 44, 50 [2013],
citing Penal Law § 265.20 [a] [3]). Thus, New York does not criminalize the mere
possession of a handgun in public.
III.
Burden Shifting on the Licensure Element
Defendant further asserts that, notwithstanding Hughes, section 265.03 (3) does not
prohibit only unlicensed possession because the gun license exemption is set forth in a
different section, Penal Law § 265.20 (a) (3). As such, the statutory scheme presumes
public possession is unlawful and the licensure exemption is a defense for which a
defendant must carry the initial burden of production. Having thus framed this permutation
of his constitutional claim, defendant contends that because the Bruen majority held that
gun possession in public is lawful, the statute works an unconstitutional shifting of the
burden of proof to defendant to establish his innocence (In re Winship, 397 US 358, 364
[1970] [shifting the burden of persuasion to a criminal defendant violates due process]).
The majority similarly opines, relying in part on People v Santana (7 NY3d 234, 236
[2006]), that there is a licensure exemption “not found within the text of Penal Law §
265.03 (3)” and thus it constitutes a “proviso” that may be raised by the defendant as an
ordinary defense which the prosecution must disprove beyond a reasonable doubt (majority
op at 5). That characterization is deployed in support of the majority’s conclusion that
defendant’s challenge is unpreserved, in part, because shifting the burden of production is
not a due process violation so long as the burden of persuasion remains with the
prosecution. The majority’s conclusion is not supported by law or practice.
First, Santana was decided seven years before Hughes declared that only unlicensed
weapons possession is a crime under New York law and thus Hughes, not Santana,
properly instructs on the essential elements of firearms possession (Santana, 7 NY3d at
236). Contrary to the majority’s view, under Hughes, the lack of a license is an essential
element of the crime which must be established by the prosecution by clear and convincing
evidence (22 NY3d at 50 [2013] [stating the law prohibits only “unlicensed possession”]).
Second, the majority misunderstands Santana and how we distinguish elements
from defenses. Santana involved a jurisdictional deficiency challenge to the prosecutor’s
information on the ground that the second-degree criminal contempt charge under Penal
Law § 215.50 (3) failed to state that the crime did not arise out of a labor dispute, an
exception found in the Judiciary Law and cross referenced in Penal Law § 215.50 (3). The
Court stated that “[l]egislative intent to create an exception has generally been found when
the language of exclusion is contained entirely within a Penal Law provision” (Santana at
237). But that is the case here; the licensure exclusion is set forth in the Penal Law. It is
not found in a completely different statute, as was the case in Santana. The fact that the
licensure exclusion is located in a different section of the Penal Law is irrelevant to the
analysis as further is supported by Santana’s citation to the 1986 decision in People v
Rodriguez (id. at 237, citing 68 NY2d 674, 675 [1986]). The Rodriguez Court adopted the
dissenting opinion in the Appellate Division, which observed that a defendant may be
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required to carry the burden of proof in asserting a legislatively defined affirmative defense
or negating a rebuttable presumption (People v Rodriguez, 113 AD2d 337, 343 [2d Dept
1985] [Lazer, J., dissenting]). The dissent explained that absent such legislative guidance
courts considered whether the information was “uniquely in the possession of the
defendant” but after the adoption of the revised Penal Law in 1965, this approach was
limited to “offenses defined outside the Penal Law” (id. at 345, citing e.g., People v
D'Amato, 12 AD2d 439 [1961] [General Business Law § 343]; People v Baur, 102 Misc
2d 971 [1980] [Vehicle and Traffic Law § 1180 (b); § 1104 (a); § 1110 (a)]). And in
Rodriguez, because the offense was “found within the Penal Law”—like “any true statutory
exception setting forth a material element of a crime found in the Penal Law”—“the People
must bear the burden of introduction unless it has been classified as a defense by the
Legislature” (id. at 345).
The majority here concludes that the statutory scheme shifts only the burden of
production to the defendant (majority op at 8). However, this ignores that a defendant meets
the burden of production by establishing that they have a valid license and thus they
essentially must prove that they are engaged in constitutionally protected conduct. In other
words, a defendant must persuade the fact finder that they are innocent of the crime of
unlicensed possession of a weapon. As a consequence, the prosecution is placed in a
reflexive posture, needing only to respond to the licensure issue if the defendant raises it.
This view of the statutory framework absolves the prosecution of establishing the only
crime under New York’s law: unlicensed firearm possession. It is nothing short of a shifting
of the burden, in contravention of Hughes.
The burden shifting is also constitutionally impermissible under the Bruen majority
holding. That view is shared by the Supreme Judicial Court of Massachusetts which
recently invalidated an almost identical statutory scheme to that in New York, on the basis
that, post-Bruen, lack of licensure is required to be an essential element of the crime of
public possession of a firearm and cannot be an affirmative defense (Commonwealth v
Guardado, 491 Mass 666, 667 [Mass 2023]).2In Guardado, the Court found that
defendant’s Second Amendment and due process rights were violated because the jury was
not instructed that lack of licensure was an element and thus the defendant was convicted
of solely possessing a firearm in public which Bruen held was constitutionally protected
conduct (id. at 692; quoting Bruen at 2135).3 As I discuss, this same rationale applies to
the New York statute in question, Penal Law § 265.03 (3).
It is undisputed that the court did not charge the jury that in order to find defendant
guilty of Penal Law § 265.20 (a) (3) it must find that the prosecution established by clear
2 In a subsequent decision, the court rejected a double jeopardy challenge on the ground that since Guardado I had held licensure was not an essential element at the time of the defendant’s trial, on retrial “the Commonwealth is not being given a second bite at the proverbial apple to supply evidence that it was required to muster in the earlier trial” Commonwealth v Guardado (Guardado II) (No SJC-13315, 2023 WL 7029883 [Mass Oct 23, 2023]). 3 As the concurrence in Guardado notes, requiring proof of licensure as an essential element need not be particularly burdensome for the prosecution, and may be proven in a variety of ways, including by establishing a lack of evidence of licensure records (Commonwealth v Guardado, 491 Mass. 666, 694, 206 NE3d 512, 541 [2023] [Lowy, J., concurring]). Notably, under New York law, “[e]very licensee while carrying a pistol or revolver shall have on [their] person a license to carry the same” and “[u]pon demand, the license shall be exhibited for inspection to any peace officer, who is acting pursuant to [their] special duties, or police officer” (Penal Law § 400.00 [8]) . A defendant’s failure to do so may provide an inference of a lack of licensure. -7- -8- No. 67
and convincing evidence that defendant did not have a license to possess the handguns in
public. Therefore, defendant is entitled to a new trial where the jury is properly instructed
on all the elements of criminal weapons possession.4
Order affirmed. Opinion by Judge Halligan. Chief Judge Wilson and Judges Garcia, Singas, Cannataro and Troutman concur. Judge Rivera dissents in an opinion.
Decided November 21, 2023
4 I agree with the majority that defendant’s challenges to the vehicle inventory search and admission of certain trial testimony are without merit. -8-