Are 'home or Place of Business' Exception and 'Labor' Exception Elements of the Crime ?
In People v. Rodriguez (68 NY2d 674 , the Court of Appeals concluded that the "home or place of business" exception in criminal possession of a firearm in the third degree (Penal Law 265.02 ), was an element of the crime, to be pleaded and proven by the prosecution, not the defendant.
Two factors distinguish the result reached in Rodriguez from the conclusion reached here.
As noted, the legislative history of Penal Law 215.50 demonstrates that the labor exception language was not intended as an element of the crime.
Second, unlike the "home or place of business" exception language of Penal Law 265.02 (4), which is exclusively contained within the Penal Law, the labor exception language of Penal Law 215.50 (3) is only partially contained therein.
The actual definition exists outside the Penal Law. Thus, since this exception is contained outside the Penal Law, the rule in Kohut is arguably inapplicable.
And, although it could be argued that the definition is incorporated by reference into the Penal Law, the Court of Appeals, in an analogous situation, has taken a contrary position. (See People v. Thomas, 70 NY2d 823 .)
In Thomas, the defendant was charged with Vehicle and Traffic Law 1192 (2) which prohibits the operation of a motor vehicle when the driver's blood alcohol content is .10% or more "as shown by chemical analysis of such person's blood ... made pursuant to the provisions of section eleven hundred ninety-four of this article".
The provisions of Vehicle and Traffic Law 1194 provide a very detailed statutory outline of when an arrest and testing for intoxicated driving are permitted.
In Thomas, the Court of Appeals essentially concluded that the Vehicle and Traffic Law 1194 portion of Vehicle and Traffic Law 1992 (2) is not an element of that crime. (See People v. Thomas, supra.)
Although the Court in Thomas did not articulate its reasons for its conclusion, what is apparent is that the Court was applying a commonsense approach to statutory interpretation, by concluding that the details of Vehicle and Traffic Law 1194 are best left for the trial court to decide, not the jury.
For all the reasons outlined above and, in light of Thomas, the Court concludes that Rodriguez does not dictate a contrary result.