Opinion
2010NY063994.
Decided February 28, 2011.
People: ADA Raffaela Belizaire, Cyrus R. Vance, Jr., District Attorney, New York County, One Hogan Place, New York, New York.
Defendant: Lawrence H. Schoenbach, Esq., Law Offices of Lawrence H. Schoenbach, New York, New York.
The defendant, a 52 year-old licensed ship's captain, was arrested while navigating the waters in or about the Statue of Liberty. He is charged with criminal possession of a weapon in the fourth degree in violation of PL § 265.01 (1). The defendant moves to dismiss on the grounds that: [1] the charges violate 18 USCA § 926A (the McClure-Volkmer Act); [2] New York lacks jurisdiction; [3] the defendant's arrest and transport from New Jersey to New York violates state-to-state extradition laws; and [4] dismissal is in the interest of justice pursuant to CPL § 210 and People v. Clayton, 41 AD2d 204 (2d Dept 1973). The People oppose the motion. For the reasons that follow, the motion is denied in its entirety.
The information
In the accusatory instrument, PO Andrzej Bigus of the Harbor Unit states that on August 27, 2010, he recovered an unloaded .45-caliber pistol from a locked safe inside of the defendant's boat which the defendant was navigating in the waters opposite 1 South Street, New York, New York. PO Bigus also states that he was informed by Coast Guard Officer Thomas Prisco that the defendant stated in substance: "I have a firearm, it's unloaded."
Defendant's arguments
In his motion, the defendant claims that he is licensed by the U.S. Coast Guard to captain any vessel up to 3,000 tons "upon all oceans". On the date of his arrest, the defendant was employed as Captain of the Motor Vessel ("MV") Joan's Ark, a private yacht flagged in the British Virgin Islands. The defendant claims that the yacht is "based primarily in the State of Florida" and is owned by Westport, Ltd, Tortola, BVI ("Westport"). The defendant has no ownership interest in Westport and is not an officer or director of the same.
On or about July 5, 2010, the defendant sailed the MV Joan's Ark from Jupiter, Florida, traveling north along the Eastern Seaboard of the United States on a twelve-week round-trip summer cruise. The MV Joan's Ark stopped at ports along the Eastern seaboard and was ultimately scheduled to return to Florida. The defendant claims that he is a resident of Florida and that his possession of the .45-caliber pistol at issue is legal in the State of Florida. The defendant, however, has failed to provide to the Court any proof of his lawful possession of the handgun, such as a license, and has not explained his failure to do so.
Possession of the .45 caliber pistol recovered in this case is presumed by the defendant for purposes of this motion, only.
On August 27, 2010, the MV Joan's Ark was moored in port in Jersey City, New Jersey and had completed a required "sector" registration for the New York/New Jersey/Connecticut "sector" as per U.S. Coast Guard regulations. That same day, the defendant was navigating the MV Joan's Ark in the waters of the New York harbor, near the Statue of Liberty. On board the MV Joan's Ark, in addition to the defendant, was the yacht's first mate, the yacht's owner, her husband, and two other couples.
At around noon, the yacht was boarded by U.S. Coast Guard officials; the defendant presumes that this was pursuant to a routine Coast Guard inspection. The defendant maintains that the ship was in or near New Jersey waters. He argues that U.S. Coast Guard officials directed that the vessel steer toward the Brooklyn Bridge, to be out of the flow of ship traffic, while they conducted a search. The defendant produced all records and registration required by the officials. When the U.S. Coast Guard asked about whether there were any weapons on board the yacht, the defendant advised that there was a handgun in the forward cabin.
The Coast Guard then searched the forward cabin of the vessel, and found the .45-caliber pistol unloaded and in a locked box. The defendant claims that no ammunition was found in the locked box in which the handgun was maintained. Thereafter, the defendant was directed by the U.S. Coast Guard officials to return the vessel to port in Jersey City. Once there, New Jersey police arrived but declined to prosecute. NYPD harbor patrol was then called. They elected to arrest the defendant in New Jersey and take him to Manhattan for prosecution of the instant case. No attempt was made to bring him to a court in New Jersey where he could be afforded his rights pursuant to laws regarding state-to-state extradition.
Discussion The McClure-Volkmer Act
The defendant argues that federal law preempts New York State's licensing requirements, and allows him to transport the .45-caliber pistol from Florida, to Florida, via his travel along the eastern coast of the United States. The People contend that the McClure-Volkmer Act doesn't apply here, and maintain that this branch of the motion should be denied since the defendant has failed to provide proof of his lawful possession in the State of Florida.
18 USC § 926A, entitled "Interstate Transportation of Firearms," and also known as the McClure-Volkmer Act, provides in relevant part:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible . . . (emphasis added).
The People argue that the defendant has failed to establish that he lawfully possessed the .45-caliber pistol at issue. While he has not provided a copy of a Florida gun license, or any other proof of his lawful possession in Florida, nor has he made any argument or otherwise substantiated his claim of lawful possession, the Court takes judicial notice of Florida law (CPLR 4511[a].) . Florida only requires persons who carry a concealed firearm to obtain a permit to do so (FSA § 790.06). There are exceptions to this licensing requirement. Pursuant to FSA § 790.25, it is lawful for a person to own, possess and lawfully use firearms and other weapons if that person is "traveling by private conveyance when the weapon is securely encased. . ."
It would appear that under Florida law, the defendant's possession of the gun at issue was lawful. Regardless, the McClure-Volkmer Act cannot preempt this prosecution because it does not apply to the facts in this case. 18 USC § 926A allows gun owners to transport their firearms interstate without incurring criminal liability under local gun laws. Here, the defendant was not transporting his gun interstate, but rather, admits he was traveling along the Eastern seaboard, docking in various states for undefined periods of time. In passing the McClure-Volkmer Act, Congress sought to protect persons who travel from State A to State B with an unloaded, inaccessible gun, from prosecution by states between States A and B where the person's gun possession is illegal, so long as their possession is valid in both States A and B.
Here, the defendant's argument based upon the McClure-Volkmer Act is predicated upon his lawful possession in the State of Florida. The Court is not persuaded that the McClure-Volkmer Act applies to interstate travel which is in actuality a round-trip foray with a gun into states that the defendant is not entitled to possess the gun. The plain language of the statute mandates application only if the defendant was transporting the gun from one state to a different state.
Accordingly, that branch of the motion seeking dismissal based upon the McClure-Volkmer Act is denied.
New York jurisdiction
The defendant claims that "no evidence exists that [he] ever possessed a weapon in the State of New York." He maintains that when US Coast Guard officials boarded the MV Joan's Ark, it was near the Statue of Liberty and therefore in New Jersey. Since no crime occurred in this state, the defendant contends that the information should be dismissed. The People maintain that New York does have jurisdiction pursuant to CPL § 20.40 [h], which provides that where an offense is "committed on board a vessel navigating or lying in any river, canal or lake flowing through or situated within the state, [a defendant] may be prosecuted in any county bordering upon such body of water, or in which it is located, or through which it passes."
In the information, the defendant allegedly possessed the gun on the MV Joan's Ark when it was "opposite of 1 South Street in the County and State of New York." Despite the defendant's claims that the Coast Guard boarded his ship when it was "near the Statue of Liberty, i.e. in New Jersey territorial waters", this is a factual dispute which can be explored at trial. The information sufficiently alleges that the defendant criminally possessed a weapon in the fourth degree in the State of New York. Since New York has jurisdiction to prosecute crimes occurring within its borders, including offenses committed on board a vessel navigating or lying in any river situated within the State, the defendant's motion to dismiss for lack of jurisdiction is denied.
State-to-state extradition laws
The defendant argues that the NYPD's arrest of the defendant while he was in New Jersey was improper, along with the NYPD's failure to bring the defendant to court in New Jersey for extradition to New York. Therefore, the defendant contends that the complaint should be dismissed. The People maintain that even if the defendant was brought to New York via "forcible abduction", the power of this Court to try him is not impaired.
Generally, police officers from New York have no power to make arrests outside their geographic jurisdiction, but there is an exception where the officers are actively assisted by officers of the state where the arrest is made ( People v. Johnson, 303 AD2d 903 [3d Dept 2003]). Here, the arresting officers were not aided by NJ police officers. Therefore, their arrest of the defendant amounts to a citizen's arrest. However, even if the arrest of this defendant violated NJ law, jurisdiction can still be exercised by New York ( see Frisbie v. Collins, 342 US 519, 522; Ker v. Illinois, 119 US 436); this has become known as the Ker-Frisbie doctrine.
There is some dispute as to whether some illegal acts may divest a court of jurisdiction. The Second Circuit called into question the Ker-Frisbie doctrine, and held that under the Due Process Clause (of either the Fifth or Fourtheenth Amendment to the U.S. Constitution), a court does not have jurisdiction over a defendant "where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights" ( U.S. v. Toscanino, 500 F2d 267 [2d Cir 1974]). The Second Circuit explained that Toscanino only applied where the defendant could prove "torture, brutality, and similar outrageous conduct," and that the conduct must "shock the conscience" before a violation can occur ( United States ex rel. Lujan v. Gengler, 510 F2d 62, 65 [2d Cir.], cert. denied 421 US 1001, quoting Rochin v. California, 342 US 165). Many other courts have called this rule in Toscanino into question or have otherwise declined to follow it ( U.S. v. Umeh, — F.Supp.2d —, 2011 WL 9397, *4 [SDNY 2011]; U.S. v. Pavlock, 2010 WL 3063158, *5 [ND W Va 2010]; U.S. v. Padilla, 2007 WL 1079090, *5 [S.D.Fla. Apr 09, 2007]; U.S. v. Best, 304 F3d 308, 312-13 [3d Cir 2002]; U.S. v. Matta-Ballesteros, 71 F3d 754, 763 [9th Cir 1995]; U.S. v. Mitchell, 957 F2d 465, 470 [7th Cir. 1992]; U.S. v. Matta, 937 F2d 567, 568 [11th Cir 1991]; Matta-Ballesteros v. Henman, 896 F2d 255, 260 [7th Cir 1990]; U.S. v. Darby, 744 F2d 1508, 1531 [11th Cir 1984]). More importantly, the U.S. Supreme Court itself continues to affirm the Ker-Frisbie doctrine ( see e.g. U.S. v. Alvarez-Machain, 504 US 655, 660-62, 670).
This Court declines to address the continuing validity of Toscanino, because regardless, on the facts of this case, New York can properly exercise jurisdiction. There are no allegations of torture or brutatily. The conduct of the NYPD, even if it violated New Jersey law, does not shock the conscience. Absent such allegations, even under Toscanino, New York may properly exercise jurisdiction over this defendant. Accordingly, the defendant's motion to dismiss on this basis is also denied.
Clayton motion
A court has the discretion to dismiss in the interest of justice even when there is no basis for such dismissal as a matter of law. Under CPL § 170.40 (1), "when, even though there may be no basis for dismissal as a matter of law . . . such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant . . . would constitute or result in injustice."
A dismissal in the interests of justice involves a sensitive balance between the individual and the State ( People v Clayton, 41 AD2d 204 [2d Dept 1973]). Dismissal in furtherance of justice should be "exercised sparingly" and only in the rare case where there is a "compelling factor" which clearly demonstrates that continued prosecution would be an injustice (People v. MR, 43 AD3d 1188 [2d Dept 2007]; see also People v. Belge, 41 NY2d 60, 62-63; People v. Sherman , 35 AD3d 768 [2d Dept 2006]).
A motion to dismiss in the interest of justice should not be used as a substitute for a trial or when the motion merely raises a trial defense ( People v Rahmen, 302 AD2d 408 [2d Dept 2003]; People v Lagnese, 236 AD2d 629 [2d Dept 1997]; People v Prunty, 101 Misc 2d 163 [Crim Ct NY Co 1979]).
The statute sets forth ten factors to be considered when determining a motion, pursuant to CPL § 170.40(1). The factors are as follows:
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of dismissal upon the safety and welfare of the community;
(h) the impact of dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would have no useful purpose.
The court has considered the aforementioned factors, and finds that the state's interest in prosecuting this case outweighs the defendant's interests in having it dismissed. The defendant is a 52 year-old man who has spent six years in the U.S. Coast Guard. He left military service in 1983, and since then, has been a captain on numerous private yachts. The defendant was arrested twice in 1980 for marijuana possession in Florida, but both of those cases appear to have been dismissed. In 1992, the defendant was arrested for misdemeanor battery by the St. Lucie County Sheriff's Office. The defendant has not explained what the disposition for this offense was.
The defendant maintains that a conviction in this case would result in a review by the U.S. Coast Guard of his ship's captain license. He claims that in all likelihood, this review would result in the revocation of that license, and without his license, he would lose his profession and career.
While the defendant has a long employment history, and spent six years of his life in military service, the defendant is not without contacts to the criminal justice system. While the aforementioned incidents happened some time ago, the court is reticent to turn a blind eye away from a violent crime — battery. The defendant's silence with respect to his criminal record is cause for concern.
Further, the defendant's instant application is lacking in a number of ways. His dire predictions about a possible U.S. Coast Guard review are unsubstantiated. Aside from his conclusory claims, he hasn't given the court any basis to conclude that such a review is likely, and that such a review would likely result in the revocation of his license. Even if his license will be revoked, the defendant may be a viable candidate for a certificate of relief from civil disabilities (see Correction Law § 701). Also troublesome is his failure to say that he wouldn't commit the same offense again.
The state's interest in prosecuting this case is compelling. The people of New York are entitled to waters and ports free from persons possessing guns without a license to do so. To dismiss this case in the interest of justice, the Court would be sending a clear signal that any person sailing into New York may illegally possess a gun within its boundaries, regardless of whether McClure-Volkmer applies or not. The instant misdemeanor offense puts the lives of all in the community, as well as the defendant, at risk of serious physical injury and death. The community's interest in public safety weighs heavily against dismissal ( see People v. Smith, 217 AD2d 671 [2d Dept 1995]; People v. Foster, 127 AD2d 684).
The defendant's counsel's suggestion that the defendant had the gun on board because of pirates is speculative at best. He was sailing along the Eastern U.S., and specifically was navigating the New York harbor. There is no evidence to substantiate his claim that he reasonably believed pirates posed a threat in the New York harbor, or that he even had the gun to protect himself from such a threat.
Further, it is of no moment that the defendant's actions did not cause actual physical harm ( People v. Figueroa, 203 AD2d 72 [1st Dept 1994]). The defendant's actions, if proven, constitutes a serious crime, which left unpunished, would undermine public confidence in the criminal justice system.
Accordingly, the defendant's motion to dismiss in the interest of justice must be denied.
Conclusion
In accordance herewith, it is hereby: ORDERED that branch of the defendant's motion to dismiss is denied in its entirety.
Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied.
The foregoing is the decision and order of the Court.