Opinion
02-15-2024
The PEOPLE of the State of New York, Respondent, v. Diandre HOLDER, Defendant–appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.
Moulton, J.P., Friedman, Gesmer, Mendez, Rodriguez, JJ.
Judgment, Supreme Court, Bronx County (Tara A. Collins, J.), rendered November 14, 2022, convicting defendant, upon his, plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his excessive sentence claim. In any event, we perceive no basis for reducing the sentence.
Defendant’s Second Amendment claim requires preservation (see People v. Cabrera, — N.Y.3d —, — N.Y.S.3d —, — N.E.3d —, 2023 N.Y. Slip Op. 05968 [2023]), and we decline to review the unpreserved claim in the interest of justice. As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) 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.
Defendant’s contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion (see People v. Gomez, 186 A.D.3d 422, 423–424, 129 N.Y.S.3d 60 [1st Dept. 2020]).