216 A.D.3d 1457
N.Y. App. Div.
2023

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v DAMONIE S. BENJAMIN, DEFENDANT-APPELLANT.

403 KA 22-00378

Appellate Division of the Supreme Court of New York, Fourth Department

May 5, 2023

2023 NY Slip Op 02443

Michael M. Mohun, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND OGDEN, JJ.

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