        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

98
KA 15-00176
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AKEEM WALLACE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (JACK J.
NIEJADLIK OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered May 8, 2014. The judgment
convicted defendant, after a nonjury trial, of criminal possession of
a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of criminal possession of a weapon in the
second degree, a class C felony (Penal Law § 265.03 [3]). The
evidence established that defendant brought a loaded, operable,
unlicensed handgun to work with him as a swing manager at McDonald’s
and that he accidentally shot himself in the leg while in the lobby
area of the restaurant. Defendant argues that he should fall within
the exception set forth in the subdivision, which provides that
possession constitutes only a misdemeanor if it takes place in a
person’s “place of business” (id.; see 265.01 [1]).

     Although defendant’s motion for a trial order of dismissal was
not specifically directed at the legal sufficiency of the evidence
based upon the “place of business” exception, inasmuch as he
unsuccessfully argued that issue before trial, defendant need not
“repeat the argument in a trial motion to dismiss in order to preserve
the point for appeal” (People v Finch, 23 NY3d 408, 410).
Nevertheless, the contention is without merit (see generally People v
Bleakley, 69 NY2d 490, 495). 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
                                 -2-                            98
                                                         KA 15-00176

public have limited access” (People v Buckmire, 237 AD2d 151, 151, lv
denied 90 NY2d 902; see People v Francis, 45 AD2d 431, 434, affd on
other grounds 38 NY2d 150; People v Fearon, 58 AD2d 1041, 1041, cert
denied 434 US 1036). 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 AD2d at 1041).

     All concur except LINDLEY, J., who dissents and votes to modify in
accordance with the following memorandum: I respectfully dissent.
Defendant was convicted of criminal possession of a weapon in the
second degree under Penal Law § 265.03 (3), which makes it a class C
felony to possess a loaded firearm. The statute provides an
exception, however, for possession of a loaded firearm in one’s “home
or place of business” (id.). Here, defendant was charged with
possessing a loaded firearm at a McDonald’s restaurant in Buffalo
where he was employed as a manager. I agree with defendant that he
possessed the weapon at his “place of business” inasmuch as he
undisputedly worked at the restaurant in question and, thus, that the
evidence is legally insufficient to establish that he violated section
265.03 (3). I would therefore reduce defendant’s conviction to
criminal possession of a weapon in the fourth degree (§ 265.01 [1]), a
class A misdemeanor.

     As cited by the People, there are several decades-old Appellate
Division decisions that narrowly construe the home or place of
business exception to apply only to 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
AD2d 151, 151, lv denied 90 NY2d 902; see People v Francis, 45 AD2d
431, 434, affd on other grounds 38 NY2d 150; People v Fearon, 58 AD2d
1041, 1041, cert denied 434 US 1036). The Courts in those cases
determined, in essence, that the Legislature could not possibly have
meant that “place of business” literally means “place of business,”
and they therefore adopted a limited definition of that phrase, which
is not defined in the statute. In my view, the statute is clear and
unambiguous on its face, and there is thus no need to discern the
Legislature’s intent. In any event, if the Legislature had wanted to
limit the places of business to which the exception of section 265.03
(3) applies, it could easily have done so.

     Finally, although McDonald’s employees may have been prohibited
by their employer from bringing firearms to work, that would merely be
grounds for terminating defendant’s employment or otherwise
disciplining him; it would not make his conduct illegal. The legality
of an employee’s conduct cannot and should not be determined by
reference to an employee handbook.



Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
