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People v. Tolbert

Appellate Division of the Supreme Court of New York, Second Department
Sep 14, 1998
253 A.D.2d 832 (N.Y. App. Div. 1998)

Opinion

September 14, 1998

Appeal from the Supreme Court, Queens County (O'Dwyer, J.).


Ordered that the judgment is affirmed.

The defendant was indicted and convicted under Penal Law § 265.02 (4), which provides that a person is guilty of criminal possession of a weapon in the third degree when he or she knowingly possesses any loaded firearm, except where the possession takes place in the defendant's home or place of business. We do not agree with the defendant's contention that the evidence adduced at trial was legally or factually insufficient to support the verdict.

In People v. Maniscalco ( 198 A.D.2d 378), this Court held that a loaded firearm was not possessed by the defendant inside his home, within the meaning of Penal Law § 265.02 (4), where the weapon in question had been recovered from the storage console of the defendant's car, which, at the time, was parked in the unfenced driveway of the defendant's residence. The defendant's effort to distinguish People v. Maniscalco (supra) on the basis that his driveway was fenced-in, rather than unfenced, is unpersuasive. The scope of the home exception provided for in Penal Law § 265.02 (4) has "been construed narrowly by the courts" ( People v. Buckmire, 237 A.D.2d 151; see also, People v. Powell, 54 N.Y.2d 524 [common hallway outside group residence not within the home exception]; People v. Crews, 236 A.D.2d 419 [home exception inapplicable where defendant secreted weapon in his house after having possessed it in girlfriend's car]). Here, the defendant's possession of a loaded firearm occurred out-of-doors, and not in any sense inside his home.

Bracken, J.P., Rosenblatt, Ritter and Florio, JJ., concur.


Summaries of

People v. Tolbert

Appellate Division of the Supreme Court of New York, Second Department
Sep 14, 1998
253 A.D.2d 832 (N.Y. App. Div. 1998)
Case details for

People v. Tolbert

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MOSES TOLBERT…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 14, 1998

Citations

253 A.D.2d 832 (N.Y. App. Div. 1998)
680 N.Y.S.2d 96

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