Opinion
03-19-2024
The PEOPLE of the State of New York, Respondent, v. Harvey DRAKE, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Marquetta Christy of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Marquetta Christy of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.
Singh, J.P., Gonzalez, Scarpulla, Higgitt, Rosado, JJ.
Judgment, Supreme Court, Bronx County (April A. Newbauer, J., at plea; Steven Hornstein, J., at sentencing), rendered January 17, 2019, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him to five years’ probation, unanimously affirmed.
Defendant’s Second Amendment challenge is unpreserved, and we decline to consider it in the interest of justice (see People v. Cabrera, 41 N.Y.3d 35, 40–50, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]; People v. Guity, 223 A.D.3d 598, 599, 204 N.Y.S.3d 43 [1st Dept. 2024]). As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.02(8) is unconstitutional under New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), or that he would be entitled to vacatur of his conviction on that basis (see Guity, 223 A.D.3d 598, 599, 204 N.Y.S.3d 43; Duncan v. Bonta, 83 F.4th 803, 805–806 [9th Cir.2023]).