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Judgment

Judgment

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Published by Jon Campbell
Judgement
Judgement

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Published by: Jon Campbell on Apr 16, 2014
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05/12/2014

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PRESENT: HON. THOMAS
J.
McNAMARA Acting Justice STATE OF
N W YORK
SUPREME COURT COUNTY OF ALBANY ROBERT L. SCHULZ, et aI., Plaintiffs,
JU GMENT
Index No.: 1232-13 RJI No.: 01-13-109432 -against-
N W
YORK STATE EXECUTIVE; ANDREW CUOMO, Governor; STATE OF
N W
YORK LEGISLATURE; SHELDON SILVER, Speaker
of
the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader; JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, Defendants. (Supreme Court, Albany County, Motion Term) APPEARANCES: Robert
1
Schulz
laintiff
Pro Se
2458 Ridge Road Queensbury,
New
York 12804 Eric
T.
Schneiderman Attorney General
of
the State
of
New
York (By: James B. McGowan, Assistant Attorney General,
of
Counsel)
ttorney
for
Defendants
The Capitol Albany,
New
York 12224-0341 McNamara,
J.
In their complaint plaintiffs maintain that the
New
York Secure Ammunition and Firearms Enforcement Act (NY SAFE Act) (L 2013, ch
1
violates
New
York State Constitution Article III,
§
14
and Article XII. After plaintiffs application for a preliminary injunction to enjoin enforcement
of
the SAFE
 
Schulz, et
al
v
State
of
New York Executive, et
al
Index No.:
1232-13;
RJ
No.: 01-13-109432
Act was denied, defendants moved for summary judgment dismissing the complaint. New York Constitution Article III,
§
4
provides that: No bill shall be passed or become a law unless it shall have been printed and upon the desks
of
the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal
of
the state, the facts which in his or her opinion necessitate an immediate vote thereon The challenge under Article III,
§
4
is based on a certificate issued by the Governor on January 14, 2013 calling for immediate passage
of
a bill then pending in the Legislature: Assembly Bill Number
23 88
and Senate Bill Number 2230. The message contained the following language: Some weapons are so dangerous, and some ammunition devices so lethal, that
New
York State must act without delay to prohibit their continued sale and possession in the State in order to protect its children, first responders and citizens as soon as possible. This bill,
if
enacted, would do so by immediately banning the ownership, purchase and sale
of
assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in
New
York State. For this reason, in addition to enacting a comprehensive package
of
measures that further protects the public, immediate action by the Legislature is imperative. Because the bill has not been on your desks in final form for three calendar legislative days, the Leaders
of
your Honorable bodies have requested this message to permit the immediate consideration
of
this bill. Later that same day, the Senate passed the bill and on the following day the bill was approved by the Assembly. While plaintiffs argue that the certification issued by the Governor is a sham, the law in this regard is well settled:
as
long as the Governor's certificate contains some factual statements, the sufficiency
of
the stated facts to support the Governor's conclusion may not be challenged
Maybee
v
State
of
New York,
4 NY3d
415,417
[2005]). Here, while plaintiffs may disagree with the Governor's and Legislature's
-2
 
Schulz, et
al
v State
o
New York Executive, et
al
Index No.:
1232-13;
RJ1 No.: 01-13-109432
assessment
of
theneedto actquickly,theGovernorincludedinhiscertificatearecitation
of
hisreasonsfor urging speedy passage. That is all the Constitution requires and consequently, the challenge based on Article III,
§
14
fails. The complaint and memoranda submitted by plaintiffs are unclear as to other bases for challenging the SAFE Act. For instance, in the complaint plaintiffs allege that the Safe Act arguably infringes on rights protected by the Second Amendment
of
the United States Constitution and Civil Rights Law
§
4
Plaintiffs also assert that the statute arguably infringes
on
rights guaranteed by
New
York Constitution ArticleXII. However,Legislativeenactmentsenjoyastrongpresumption
of
constitutionalityandwhilethe presumption is rebuttable any invalidity must be demonstrated beyond a reasonable doubt
Matter
o
McGee v Korman,
70 NY2d 225,231 [1987]). Here, plaintiffs have failed to demonstrate in what manner the SAFE Act infringes upon their asserted rights. The Second Amendment and Civil Rights Law
§
4 contain nearly identical language:
A
well regulated Militia, being necessary to the security
of
a free State, the right
of
the people to keep and bear Arms, shall not [cannot] be infringed. While the United States Supreme Court concluded in
[District
o
Columbia v Heller,
554 US 570 (2008)] that the Second Amendment confers a constitutionally protected individual right to keep and bear arms as a means
of
self-defense within the home, it also held that the right conferred by the Second Amendment and, by extension, Civil Rights Law
§
4 is not absolute and may be limited by reasonable governmental restrictions
People v Perkins,
62 AD3d 1160,
1161
[3d Dept 2009]
Iv
appeal denied
13
NY3d
748 [2009], citations omitted). The right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose (see
District
o
Columbia v Heller
at 626). [L]ongstanding prohibitions on the possession offirearn1s by felons and the mentally ill, or laws
-

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