People v. Fearon

13 Citing cases

  1. People v. Rondon

    109 Misc. 2d 394 (N.Y. Sup. Ct. 1981)   Cited 12 times

    Indeed, the Appellate Division, Fourth Department, cited People v Francis in a memorandum decision rejecting the application of the place of business exception where defendant shot and killed his victim at the place where both were employed. (People v Fearon, 58 A.D.2d 1041.) In People v Francis (supra) the dissent argued vigorously that the New York exception should be extended to cover a post-office employee carrying a gun in the post office, and based the argument, in part, on the fact that the New York provision still mandated a criminal penalty even after application of the place of business exception.

  2. People v. Wallace

    147 A.D.3d 1494 (N.Y. App. Div. 2017)   Cited 2 times

    Nevertheless, the contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although the "place of business" exception is not statutorily defined, it has been "construed narrowly by the courts in an effort to balance 'the State's strong policy to severely restrict possession of any firearm' ... with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access" (People v. Buckmire, 237 A.D.2d 151, 151, 655 N.Y.S.2d 9, lv. denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226 ; see People v. Francis, 45 A.D.2d 431, 434, 358 N.Y.S.2d 148, affd. on other grounds 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540 ; People v. Fearon, 58 A.D.2d 1041, 1041, 397 N.Y.S.2d 294, cert. denied 434 U.S. 1036, 98 S.Ct. 772, 54 L.Ed.2d 784 ). Inasmuch as the evidence at trial established that defendant was prohibited from bringing a gun to work, we conclude that to permit defendant to be subjected only to a misdemeanor "would certainly controvert the meaning and intent of the statute" (Fearon, 58 A.D.2d at 1041, 397 N.Y.S.2d 294 ).

  3. People v. Roman

    149 Misc. 2d 971 (N.Y. Sup. Ct. 1991)   Cited 1 times

    While the language of the "place of business" exception might be read to apply only to the owner or operator of a business, it has been held to extend as well to an employee of a business whose duties include protecting the property of that business (People v. Francis, 45 A.D.2d 431 [2d Dept. 1974], affd on other grounds 38 N.Y.2d 150; see also, People v. Fearon, 58 A.D.2d 1041 [4th Dept. 1977]), at least where the employer has authorized the employee to possess a weapon (People v. Smith, 105 Misc.2d 586 [Sup Ct, N Y County 1980]; see, People v. Rondon, 109 Misc.2d 394, 400-401 [Sup Ct, N Y County 1981]). In this case there is no question that the defendant was hired to protect both the store and its owner.

  4. People v. Witherspoon

    120 Misc. 2d 648 (N.Y. Sup. Ct. 1983)   Cited 5 times

    The fact pattern in People v Fearon ( 58 A.D.2d 1041, application for lv to app den 42 N.Y.2d 1002, cert den sub nom. Fearon v New York, 434 U.S. 1036) provides a perfect example for making this theoretical evaluation. In Fearon, the defendant shot and killed decedent in defendant's place of employment.

  5. People v. McWilliams

    96 Misc. 2d 648 (N.Y. Cnty. Ct. 1978)   Cited 14 times
    Noting "that this area of the law is at best, unsettled," and concluding that "if the 'place of business exception' has any application to a taxicab, it should apply to the taxi driver who possesses a loaded firearm in his taxi, without utilizing it for any purpose outside of his role as a driver. Since there has been no definitive appellate determination on this particular issue, its resolution should be left to the trier of fact."

    Other courts have more strictly limited the exception. (Cf. People v Fearon, 58 A.D.2d 1041, which held that extending the exception to cover a defendant who happened to shoot his victim at his place of business would be a perversion of justice.) The Appellate Division, Second Department, has more strictly construed the exception than most other courts.

  6. People v. Wallace

    2018 N.Y. Slip Op. 3305 (N.Y. 2018)   Cited 17 times

    nded to apply only where a person has a clear and substantial interest in the business beyond that of an employee. Consistent with the statutory language, the Appellate Division Departments have generally interpreted the exemption "narrowly ... in an effort to balance โ€˜the State's strong policy to severely restrict possession of any firearm,โ€™ with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access" ( People v. Buckmire, 237 A.D.2d 151, 151, 655 N.Y.S.2d 9 [1st Dept. 1997] [citations omitted], lv denied 90 N.Y.2d 902, 663 N.Y.S.2d 514, 686 N.E.2d 226 [1997], quoting People v. Maniscalco, 198 A.D.2d 378, 378โ€“379, 603 N.Y.S.2d 890 [2d Dept. 1993], lv denied 82 N.Y.2d 927, 610 N.Y.S.2d 179, 632 N.E.2d 489 [1994] ; see alsoPeople v. Khudadzade, 156 A.D.2d 384, 384โ€“385, 548 N.Y.S.2d 336 [2d Dept. 1989], lv denied 75 N.Y.2d 814, 552 N.Y.S.2d 564, 551 N.E.2d 1242 [1990] ; People v. Fearon, 58 A.D.2d 1041, 1041, 397 N.Y.S.2d 294 [4th Dept. 1977], cert denied 434 U.S. 1036, 98 S.Ct. 772, 54 L.Ed.2d 784 [1978] ). Courts have explained that "the statute is designed to limit the use of guns, ever mindful of the fact that โ€˜concealed weapons present an immediate and real danger to the publicโ€™ " ( People v. Francis, 45 A.D.2d 431, 435, 358 N.Y.S.2d 148 [2d Dept. 1974], affd on other grds 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540 [1975], quoting People v. Moore, 32 N.Y.2d 67, 72, 343 N.Y.S.2d 107, 295 N.E.2d 780 [1973] ).

  7. People v. Buckmire

    237 A.D.2d 151 (N.Y. App. Div. 1997)   Cited 7 times

    estrict possession of any firearm" ( People v Maniscalco, 198 AD2d 378, 379 [citing People v Powell, 54 NY2d 524], lv denied 82 NY2d 927), with its policy to treat with leniency persons attempting to protect certain areas in which they have a possessory interest and to which members of the public have limited access ( see, e.g., People v Maniscalco, supra [car parked in driveway not within "home" exception]; People v Powell, supra [common hallway outside a group residence not within "home" exception]; People v Cross, 174 AD2d 313 [social club held not to be a "place of business"], lv denied 78 NY2d 964). In circumstances such as these, which include defendant's admissions that his possession of the firearm was for personal reasons unrelated to his employment and that he had no legitimate reason to bring the firearm to his workplace and where the offense occurred in an elevator accessible to large numbers of people, the courts have declined to apply the "place of business" exception ( People v Fearon, 58 AD2d 1041 [employee not entitled to the exception where he used firearm at workplace to settle a personal vendetta], cert denied 434 US 1036; People v Francis, 45 AD2d 431 [postal worker not entitled to the exception where he possessed firearm at workplace for reasons unrelated to his duties], affd 38 NY2d 150; People v Rondon, 109 Misc 2d 394 [possession at a not-for-profit social club by managerdirector of the club held not within the exception]). ( See, 167 Misc 2d 581.)

  8. People v. Torres

    134 A.D.2d 902 (N.Y. App. Div. 1987)   Cited 2 times

    The portion of the witness's Grand Jury testimony read on redirect was not relevant on the issue of defendant's guilt. The evidence of defendant's guilt was overwhelming (see, People v. Fearon, 58 A.D.2d 1041). We have reviewed defendant's remaining contention and find it to be without merit.

  9. People v. Rodriguez

    113 A.D.2d 337 (N.Y. App. Div. 1985)   Cited 29 times
    In People v. Rodriguez, 113 A.D.2d 337 (2d Dept. 1985), no evidence was elicited at trial to prove whether the laundromat at which the defendant had possessed the firearm in question was his place of business.

    Our holding merely provides that the prosecution's burden of persuasion is not triggered until and unless the defense produces some evidence, however minimal, to invoke the statutory exception. Our conclusion is further buttressed by the fact that the statutory exception in Penal Law ยง 265.02 (4), as indicated, supra, is a very limited one and has, as a general rule, been narrowly construed by the courts in order to carry out the clear legislative purpose of limiting the use of guns (see, People v Francis, 45 A.D.2d 431, affd on other grounds 38 N.Y.2d 150; People v Fearon, 58 A.D.2d 1041, cert denied 434 U.S. 1036; People v Rondon, 109 Misc.2d 394, 396-397, supra). Thus, it is entirely consistent with the legislative intent to require a defendant, in the first instance, to come forth with some evidence to indicate that he is entitled to the benefits of the "home or place of business" exception so as to insure that the provision is not extended beyond the bounds contemplated.

  10. People v. Melville

    2008 N.Y. Slip Op. 50461 (N.Y. Sup. Ct. 2008)

    Thus, with respect to the "place of business" part of the exception, the courts have held that the exception does not apply where someone possesses a weapon unrelated to the performance of his or her job. See People v. Buckmire, 237 AD2d 151, supra (exception not applicable to stockbroker who possessed weapon for personal reasons and left it in elevator); People v. Fearon, 58 AD2d 1041 (4th Dept 1977), cert. denied 434 U.S. 1036 (exception not applied to employee who used weapon at work to settle a personal grudge); People v. Francis, 45 AD2d 431, 434 (2nd Dept 1974), affd. 38 NY2d 150 (1975) (exception not applicable to postal worker who possessed a weapon unrelated to his workplace duties). Courts have also held that the "place of business" exception was intended to protect legitimate businesses where it would be "reasonable to believe that a gun is necessary to protect persons and property."