DWAYNE FERGUSON PLEADS GUILTY ON WEAPONS CHARGE. BUT WILL HE LOSE HIS “CARRY” LICENSE? WILL HE LOSE HIS HANDGUNS?

You may recall the Dwayne Ferguson case. But, for those of you who might have forgotten, we give you the following facts, as posted first in the Arbalest Quarrel on February 23, 2014: “Officials at Harvey Austin Elementary School, located in Buffalo, New York, received an anonymous tip. A person had entered the school with a gun. The police were alerted; a SWAT team responded, and the school was ‘locked down.’ Scouring the school, the police eventually traced the weapon to a dubious source: Dewayne Ferguson. Ferguson, 52 years old, father of three, operator of a printing press, who worked as a security guard for community events, was caught. He had carried a gun into a school building. At no time, during the police sweep of the building, did Ferguson inform the police he had a gun on him. What was Ferguson doing in the school? He isn’t a teacher. Still, Ferguson had a legitimate purpose for being at the School, but that purpose did not extend to his having a gun on him.

The Buffalo News said that ‘Ferguson is not employed by the Buffalo School District but was working in the 21st Century Community Learning Program, an after-school academic enrichment initiative that tutors disadvantaged students.’ The police arrested Ferguson and he was charged under the same law he fought to pass – the NYSAFE Act. According to WGRZ-TV, a Buffalo news station, Ferguson pleaded not guilty to two weapons charges. WGRZ-TV also reported that prosecutors asked the Court to set bail at $10,000.00, but “City Court Judge Jeanette Ogden released the activist on his own recognizance, citing his community involvement and the fact that Ferguson has no prior run-ins with the law.

Ferguson, a proponent of NYSAFE, is a friend of ‘antigun’ zealots who promoted it. As reported by The Buffalo News, ‘he was among local activists who stood with Assemblywoman Crystal Peoples-Stokes last year lobbying for a law that would make possessing a gun on school property a felony.’ Ironically, Ferguson was charged under the same law he advocated for.”

In a follow-up to our February 23, 2014 Article, posted on April 25, 2014, we gave you an in depth review of the laws affecting Ferguson as an attorney would view the matter: first, citing the charges brought against Ferguson together with the Court docket numbers and, second, we explained precisely what those two charges mean.

There were two weapons’ charges brought against Dwayne Ferguson and there are two docket numbers as the two charges were initially filed in the Buffalo City Court; one charge was dropped and the case was waived to Erie County Supreme Court because of the severity of both charges, as both charges amounted to felonies, and either weapons’ count was beyond the jurisdiction of City Court:

“The police brought Ferguson to Buffalo City Court. The Prosecutor arraigned Ferguson on two weapons charges: Penal Code Sections 265.03 and 265.01-a. The case is: People vs. Dwayne Ferguson. The case was initially brought in Buffalo City Court.  The criminal docket number in the Buffalo City Court is: #ER 002043F. The case was subsequently transferred to the Erie County Supreme Court. The criminal docket number in the Erie County Court is: #00235-2014.”

Here is a detailed account of the two weapons charges as filed against Ferguson:

Let’s look at New York Penal Code Section 265.03 first. ‘A person is guilty of criminal possession of a weapon in the second degree when: (1) with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun; or (2) such person possesses five or more firearms; or (3) such person possesses any loaded firearm. . . . Criminal possession of a weapon in the second degree is a class C felony.’

We look at Penal Code Section 265.01-a next. ‘A person is guilty of criminal possession of a weapon on school grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes, of any school, college, or university, . . . . Criminal possession of a weapon on school grounds is a class E felony.’

Now let’s take a closer look at these Statutes for the Ferguson case.

We will look at New York Penal Code Section 265.03 first. We know Ferguson did not intend to use his handgun against another person. So, condition “1” of Section 265.03 is irrelevant. That leaves Penal Code Sections 265.03(2) or (3). Neither applies. I explain. We must look to Penal Code Section 265.20. This is an exemption provision Section in the New York Penal Code. Let’s take a look at Penal Code Section 265.20(a)(3). “Paragraph [h] of subdivision twenty-two of section 265.00 and sections 265.01, 265.01-a, subdivision one of section 265.01-b, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15, 265.36, 265.37 and 270.05 shall not apply to: Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter or possession of a weapon as defined in paragraph [e] or [f] of subdivision twenty-two of section 265.00 of this article which is registered pursuant to paragraph [a] of subdivision sixteen-a of section 400.00 of this chapter or is included on an amended license issued pursuant to section 400.00 of this chapter.” What does this mean?

Dwayne Ferguson has a license to carry a handgun. So, even though Ferguson had a firearm on him – and presumably a loaded firearm – Penal Code Section 265.03 doesn’t apply to him. Ferguson’s handgun license allows for him to carry a loaded firearm. The City Prosecutor properly dismissed the Section 265.03 charge. That left Penal Code Section 265.01-a. Again, let’s take a look at Section 265.01-a.

‘A person is guilty of criminal possession of a weapon on school grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes. . . .’ ‘Criminal possession of a weapon on school grounds is a class E felony.’

In the April 25 Article we left off, speculating what might happen to Dwayne Ferguson on the Section 265.01-a charge. We don’t need to speculate about this any longer. We now know. The Grand Jury was never convened. The First Assistant District Attorney didn’t need to convene a Grand Jury because Ferguson pleaded guilty to the Section 265.01-a weapons’ charge last week, Tuesday, May 27, 2014, in Erie County Supreme Court where he stood before Judge John Michalski. Now, you may rightly ask, why did Dwayne Ferguson plead guilty to the Section 265.01-a charge, rather than fighting the charge in Court?

Well, we know the best case scenario for Ferguson would have been for the Erie Country First Assistant District Attorney, who prosecuted the case, to dismiss the charge against Ferguson. But that wasn’t going to happen. What then were Ferguson’s options? Actually, there was only one. Had he not pleaded out, the First Assistant District Attorney would have brought the matter before the Grand Jury. There was always the possibility the Grand Jury, when presented with the District Attorney’s evidence against Dwayne Ferguson, might have decided against indicting him. Granted, that possibility existed – slim though it was, virtually non-existent, really. But Ferguson might have taken a chance just the same, hoping the Grand Jury wouldn’t indict him: that would have ended the matter; the School gun charge against him would have been dropped; and, likely, Ferguson’s two handguns would have been returned him and it would be as if the matter had never had happened. But, if the Grand Jury did indict, then Ferguson would have had to face a trial – more likely a trial by jury, assuming Ferguson didn’t seek a bench trial instead, which would be foolhardy. But, Ferguson clearly had to ask himself, did he wish to go through a trial? If he decided to exercise his right to trial by jury, what, then? Well, it is likely a jury would find Ferguson guilty since the police found a gun on him in a school and would testify to that fact. So, it would be extremely difficult for Dwayne Ferguson to deny the facts at trial. Could Ferguson convince a jury otherwise? That’s unlikely. Honestly, would a jury believe the police were either lying about finding a gun on Ferguson, or that the police were mistaken about the object that was found on him – a handgun? Still, the District Attorney had to prove one critical element of the Section 265.01-a charge – namely that Ferguson knew he had a gun on him when he entered the school building. But, since it is presumed that a person knows what he or she has on them, it would be difficult for Ferguson to deny he had knowledge that he had a gun on him. If he sought to do so, giving his own testimony, under oath, swearing he honestly didn’t know he had a gun on him, then that would certainly raise an issue involving Ferguson’s mental and emotional competency, namely, should Dwayne Ferguson be trusted with a firearm at all?

Still, speculation concerning what might or mightn’t have transpired had the case gone to trial – while of some academic interest – if such were to happen again – is, in the instant case, all but moot. For, as we now know, Ferguson pleaded guilty. And, he decided to plead out for a very important reason – critical to his wish to eventually acquire his guns again. And, obviously, the reason Dwayne Ferguson decided to plead guilty was to gain the certainty that he wouldn’t have a felony conviction on his record. For, as you see, Ferguson pleaded guilty not to a Class E felony, but, rather, to a Class A Misdemeanor.

As we had mentioned in an earlier post on the Arbalest Quarrel, prior to passage of NY SAFE, criminal possession of a weapon on school grounds was a Class A misdemeanor. With the enactment of SAFE, criminal possession of a weapon on school grounds was increased to a Class E felony. Curiously and oddly and ironically, Ferguson was a strong supporter and advocate for the SAFE Act. Yet, he was spared the harshest penalty if convicted under it. As a condition of agreeing to plead guilty to the Section 265.01-a charge of possessing a weapon on school grounds, the Defense and the People agreed that Ferguson would receive the Class A misdemeanor penalty rather than the Class E felony penalty. Now, some readers may believe that Ferguson got off easy. But, keep in mind a few important points here: (1) Dwayne Ferguson had never been convicted of a serious crime before this odd mishap and first time offenders, generally, factoring in, of course, the nature of the crime, are often treated leniently by a Court; (2) the cost of a jury trial is expensive and the cost of prosecuting Ferguson must be borne by the tax payer although of course he must pay for his own defense; and a District Attorney must expend considerable time and resources to prepare for and prosecute a case that goes to trial; (3) Dwayne Ferguson is a hypocrite – no argument there – but hypocrisy – albeit reprehensible behavior to a good many of us – isn’t a crime in America, and, were it otherwise, our prisons would certainly be inundated – not least of all with politicians; and (4) for anyone who is treated like a V.I.P., such as Ferguson, the loss of his guns must vex Dwayne Ferguson to no end assuming, of course, Ferguson does in fact, lose possession of his firearms. But is that true? Will he suffer revocation of his ‘full carry’ handgun license and will Ferguson lose his handguns and forego their return to him indefinitely? If so, then why? And if not, then, why not? What, truly, does this all mean?

Well, the Ferguson’s case isn’t over – only the conviction phase of it is. Dwayne Ferguson is scheduled to appear before Judge Michalski for sentencing on August 19^th. One of three things can transpire for Ferguson: one, Ferguson can be sentenced to prison, up to one year. That’s unlikely to happen since, once again, Ferguson hasn’t, to the best of our knowledge and belief, apart from the present matter – possessing a weapon on school grounds – ever been convicted of a serious crime; two, Ferguson can get probation for a specified period of time and that would spare him a stay in prison, but he would have to appear periodically before a probation officer, and that, too would not be particularly appealing to Ferguson; and three, the Judge can order a conditional discharge. This last judicial option would be the most favorable to Ferguson. For, in that event, Ferguson falls under the auspices of and control of the sentencing Court, not the probation office. Ferguson would probably be ordered to complete community service for a specified time, and the Court would be kept apprised of Ferguson’s conduct to assure itself that Ferguson is staying out of trouble. But, keep in mind, a conditional discharge doesn’t negate the crime for Ferguson. In order for Ferguson to be truly relieved of his criminal record, he would need to claim relief from disability; and he could do so at the sentencing, or he could do so at a later date, as a separate matter, before a different Judge in the Erie County Supreme Court.

Now what does all this mean for the status of Ferguson’s guns and his ability to reclaim them from the police? Well, we first look to the Court itself to see what is required of it under Section 2 of the SAFE Act, as codified in Section of 380.96 of the N.Y. Criminal Procedure law, in respect to Ferguson’s license. The NY SAFE Act sets forth clearly, concisely and unmistakably: “Upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted, and the revocation of any license or registration issued pursuant to Article Four Hundred of the Penal Law, the Judge pronouncing sentence shall demand surrender of any such license or registration and all firearms, shotguns and rifles. The failure to so demand surrender shall not effect the validity of any revocation pursuant to Article Four Hundred of the Penal Law.” So, since Ferguson has previously surrendered his firearms to the police, must the sentencing Judge order surrender of Ferguson’s pistol license under Section 380.96 of the Criminal Procedure law?

Now this is a sticky wicket. A key phrase of Section 2 of the SAFE Act rests on the first clause, “upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted.” Well, Ferguson’s guns were seized at the scene of the crime, but that isn’t what Section 2 of the NY SAFE Act means by “upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted.” For, the taking of Dwayne Ferguson’s guns by the police, on school grounds doesn’t, ipso facto, constitute conviction of any offense. Yes, Dwayne Ferguson was arrested at the scene, and, yes, police seized his handgun. And, yes, a second handgun was later turned over to the police. But, arrest doesn’t equal conviction.

Conviction under Section 265.01-a of the Penal Law occurred after, on Tuesday, May 27, 2014, in the Erie County Supreme Court, when Dwayne Ferguson pleaded guilty to a Class A misdemeanor charge of knowingly possessing a weapon on school grounds. The question is whether judgment of conviction of that offense requires the seizure of firearms, shotguns or rifles from an individual so convicted. Well, let’s see. We must now turn to Subsection 11 of Section 400.00 of the New York Penal law. And Subsection 11 of Section 400.00 of the N.Y. Penal law deals with both revocation and suspension of gun licenses. That Subsection sets forth in principal part: “The conviction of a licensee anywhere of a felony or serious offense shall operate as a revocation of the license. A license may be revoked or suspended as provided in Section 530.14 of the Criminal Procedure Law or Section Eight Hundred Forty-two-a of the Family Court Act.” Section 530.14 doesn’t apply to the instant case since it involves orders of protection. So, if the Court is required to revoke Dwayne Ferguson’s license, that is so if Ferguson is convicted of a felony or serious misdemeanor.

Now, it’s clear that, if Dwayne Ferguson were convicted of a Class E felony, Judge Michalski would in fact have no choice in the matter as conviction under Section 265.01-a of the Penal Law would mandate revocation of all pistol licenses and long arm permits. But, although the SAFE Act has amended Section 265.01-a of the New York Penal Law so that conviction under that Section is now a Class E felony, Ferguson was allowed to plead guilty to a Class A misdemeanor, the penalty for carrying a weapon onto school grounds prior to SAFE. So the question is whether a Class A misdemeanor constitutes a serious offense within the meaning of Section 400.00 of the New York Penal Law. The title of Section 400.00 of the Penal Law is, “Licenses to Carry, possess, repair and dispose of firearms.”

Now, it so happens that the words ‘serious offense,’ are defined with particularity in the Section 265.00 of the New York Penal Law. That means that we need not guess whether a Class A misdemeanor is a ‘serious offense,’ for the expression is a legal term of art. Subsection 17 of Section 265.00 of the New York Penal Law says in pertinent part: “Serious offense means any of the following offenses defined in the penal law: illegally using, carrying or possessing a pistol or other dangerous weapon.”

The question now is whether Ferguson had illegally carried a gun at the time of his arrest on school grounds. Well, he did illegally carry a gun onto school grounds. There’s no question about that, and that was the basis for his arrest and for his ultimate conviction under Section 265.01-a of the Penal Law in the first instance. But the question is whether Ferguson had illegally possessed a gun at all. Well, Ferguson did not illegally possess or carry a firearm since he had a valid permit for it. The Permit was lawfully issued to him under Section 400.00 of the Penal Law. And the nature of the license allowed Ferguson both to possess a gun and to carry it on him. And that is why the Section 265.03 charge against Ferguson was dropped. So, we may now reasonably conclude that, under Subsection 17 of Section 265.00 of the Penal Law, Dwayne Ferguson did not plead guilty to and was not convicted of a serious offense under the Penal Code of New York.

A Class A misdemeanor is not, in this instance at least, a ‘serious offense’ under the Penal Code of New York. So, clearly, it was for this reason that Ferguson was in fact willing to plead guilty to a Class A misdemeanor charge under Section 265.01-a for having possession of a weapon on school grounds. Had he not been able to do so, it is unlikely that he would’ve readily agreed to plead out. He certainly would not have willingly pleaded guilty to a Class E felony under Section 265.01-a. The Class A misdemeanor conviction provides Ferguson his best chance of keeping his “full carry” handgun license and for reclaiming his firearms from the police.

So, where does that leave us and Ferguson? Well, the police still have Ferguson’s two handguns. So, as it appears the Erie County Supreme Court isn’t required to revoke Ferguson’s pistol license, and, too, as the matter of the disposition of Ferguson’s pistol license is out of the hands of the First District Attorney of Erie County, the question is, then, who does have authority – if anyone at all – to revoke or allow Ferguson to keep his pistol carry license? That, we’ve learned, falls upon Wilmer Fowler.

Who is Wilmer Fowler? Wilmer Fowler is the Erie County Pistol Permit Hearing Officer. And it’s up to Mr. Fowler whether to allow Dwayne Ferguson to retain his pistol license. If Mr. Fowler does allow Dwayne Ferguson to keep his pistol license – and it isn’t clear the Hearing Officer will allow Ferguson to keep his pistol carry license in light of the conviction, notwithstanding that Ferguson pleaded guilty to a Class A misdemeanor charge rather than a Class E felony charge – the matter doesn’t end there. For the Hearing Officer’s decision to allow Dwayne Ferguson to retain his pistol permit ultimately rests with the Erie County Supreme Court, although Judge Michalski who presides over the criminal proceeding won’t decide that matter. The decision – whether Ferguson is allowed to retain his pistol license – isn’t a criminal matter. It’s a civil matter.

So, who decides the issue? Judge Martin Boller of the Erie County Supreme Court, who handles civil cases, does. Judge Boller, you see, also handles pistol permit cases. And the suspension or revocation of pistol licenses is a civil matter, not a criminal matter. Judge Boller is the Pistol Permit Hearing Judge. Thus the fate of Dwayne Ferguson’s pistol license rests in the hands of Judge Boller, assuming the Pistol Permit Hearing Officer does not revoke Ferguson’s pistol license and allows the return of his handguns to him in the first instance, and the Pistol Permit Hearing Officer has full discretion unless he abuses his discretion. If the Erie County Pistol Permit Hearing Officer decides to revoke or to suspend Ferguson’s pistol license, Ferguson can only request the Court to determine whether the Erie County Pistol Permit Hearing Officer’s decision amounts to an abuse of discretion.

The Arbalest Quarrel will keep you abreast of the Ferguson matter as it continues to play out. For, there is much more we need to know; for at the present time we don’t know whether the Pistol Hearing Officer has, as yet, acted upon Ferguson’s pistol license. Dwayne Ferguson’s pistol license may already have been suspended or revoked. We just don’t know, but we aim to find out because that, certainly, is on your mind. We know this matter weighs on Ferguson’s mind.