People v. Benjamin

May 5, 2023
403 KA 22-00378
Versions:216 A.D.3d 1457
186 N.Y.S.3d 876
2023 NY Slip Op 02443

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (FARES A. RUMI OF COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O‘GEEN, DISTRICT ATTORNEY, WARSAW (ADAM W. KOCH OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered May 19, 2021. The judgment convicted defendant upon a plea of guilty of attempted criminal possession of a weapon in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). Although the record establishes that defendant validly waived his right to appeal (see generally People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]), defendant‘s challenge to the constitutionality of Penal Law § 265.03 in light of the United States Supreme Court‘s decision in New York State Rifle & Pistol Assn., Inc. v Bruen (— US —, 142 S Ct 2111 [2022]) is not barred by the waiver inasmuch as that challenge relates to “a right of constitutional dimension going to ‘the very heart of the process’ ” (People v Lopez, 6 NY3d 248, 255 [2006]). Because defendant failed to raise any such challenge in County Court, however, it is not preserved for our review (see CPL 470.05 [2]; People v Jacque-Crews, 213 AD3d 1335, 1335-1336 [4th Dept 2023], lv denied 39 NY3d 1111 [2023]; see generally People v Reese, 206 AD3d 1461, 1462-1463 [3d Dept 2022]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

Entered: May 5, 2023

Ann Dillon Flynn

Clerk of the Court