UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the3rd day of May, two thousand four.
HON. ROBERT D. SACK, HON. SONIA SOTOMAYOR, Circuit Judges, HON. LEWIS A. KAPLAN, District Judge.*
UNITED STATES OF AMERICA, Appellee, v. No. 01-1645
JOSE SANCHEZ -v.- LLAR, Defendant-Appellant.
JOSE SANCHEZ -v.- LLAR, pro se, Lisbon, Ohio.
For Appellee: JONATHAN S. KOLODNER, Assistant United States Attorney for the Southern District of New York (David N. Kelley, United States Attorney for the Southern District of New York, on the brief; Daniel A. Braun, Assistant United States Attorney for the Southern District of New York, of counsel), New York, New York.
UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the Southern District of New York (Schwartz, J.), it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Jose Sanchez -v.- llar was convicted, following a jury trial, in the Southern District of New York (Schwartz, J.) of one count of distribution and possession with intent to distribute approximately 1.2 kilograms of cocaine base ("crack" cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and of one count of possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A). Sanchez -v.- llar was sentenced principally to 235 months' imprisonment. On appeal, Sanchez -v.- llar, proceeding pro se, argues that his conviction should be reversed because he received ineffective assistance from trial counsel. Specifically, he claims that his counsel was ineffective for failing to challenge the warrantless seizure of the firearm and the police officers' subsequent warrentless arrest of him.
Sanchez -v.- llar asserts that the seizure and arrest were improper because, he claims, the officers had no basis to believe his possession of the firearm was illicit. Rather, the only grounds for probable cause arose, Sanchez -v.- llar contends, after his arrest when he admitted that he was an illegal alien.
Despite the general preference for review of ineffective-assistance claims in habeas proceedings rather than on direct appeals, see Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1694 (2003), we find the record here sufficiently complete for immediate review, see United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003) (stating that claim may be decided on record before court). To prevail on an ineffective assistance of counsel claim, Sanchez -v.- llar must show that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466
U.S. 668, 688, 694 (1984).
We find the instant ineffective-assistance claim unavailing because the argument that Sanchez -v.- llar contends his trial counsel should have raised is frivolous. Sanchez -v.- llar's argument appears to rest on the mistaken assumption that the probable cause justifying the seizure and arrest must have been coterminous with the charges for which he was ultimately charged and convicted. The discovery of the firearm, however, provided the officers with sufficient probable cause that a crime under New York law was being committed, therefore creating probable cause for both the seizure of the weapon and the arrest of Sanchez -v.- llar.
Under New York law, it is a crime to possess a firearm. See N.Y. Penal Law § 265.01(1); People v. Washington, 209 A.D.2d 162, 163 (App. Div. 1st Dep't 1994) (holding that under New York law possession of a gun is a crime). While state law excepts from prosecution individuals in possession of a firearm with the appropriate license, see N.Y. Penal Law § 265.20(3), this exception is an affirmative defense that "generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense." Washington, 209 A.D.2d at 163. Thus, because it is beyond dispute that the officers were lawfully located in a place from which they plainly could see the gun, the officers were justified in seizing it because of its "immediately apparent" incriminating character. See Horton v. California, 496 U.S. 128, 136-37
(1990). Further, Sanchez -v.- llar's subsequent arrest was proper because probable cause existed that Sanchez -v.- llar's possession of the firearm violated New York law. See, e.g., United States v. Cruz, 834 F.2d 47, 50-51 (2d Cir. 1987) (holding that warrantless arrests are justified when based on probable cause, which is present when the facts and circumstances within the officers'
knowledge warrant a "belief that an offense has been or is being committed" (citation and internal quotation marks omitted)).1
For these reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
ROSEANN B. MACKECHNIE, CLERK By:
[*]-. The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.
-. We reject Sanchez -v.- llar's argument that New York's statutory scheme offends the Second Amendment of the United States Constitution. See U.S. Const. amend. II; United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (stating that "the right to possess a gun is clearly not a fundamental right").
This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 922 - Sec. 922. Unlawful acts
- US Code - Title 21: Food and Drugs - 21 USC 841 - Sec. 841. Prohibited acts A
- U.S. Supreme Court - Massaro v. United States, 538 U.S. 500 (2003)
- U.S. Court of Appeals for the Second Circuit - United States of America, Appellee, v. Patricia Morris, Defendant-Appellant,, 350 F.3d 32 (2nd Cir. 2003)
- U.S. Court of Appeals for the Second Circuit - United States of America, Appellee, v. Oliverio Cruz, Appellant., 834 F.2d 47 (2nd Cir. 1987)
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