Opinion
2021–00353 Ind. No. 235/17
08-09-2023
The PEOPLE, etc., respondent, v. Michael A. JOYCE, appellant.
Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Eric C. Washer, and Michael Tadros of counsel), for respondent.
Randall D. Unger, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Eric C. Washer, and Michael Tadros of counsel), for respondent.
BETSY BARROS, J.P., PAUL WOOTEN, WILLIAM G. FORD, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered November 5, 2020, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant, who was convicted of criminal possession of a weapon in the second degree ( Penal Law § 265.03 ) and criminal possession of a weapon in the third degree (id. § 265.02), contends that the ruling of the United States Supreme Court in New York State Rifle & Pistol Assoc., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387, rendered the entire firearm licensing system of New York State unconstitutional. However, the defendant's contention is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90 ; People v. McDowell, 214 A.D.3d 1437, 186 N.Y.S.3d 473 ; People v. Mabry, 214 A.D.3d 1300, 185 N.Y.S.3d 450 ; People v. Reese, 206 A.D.3d 1461, 170 N.Y.S.3d 375 ).
In any event, the defendant's contention is without merit. The ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes (see People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90 ; People v. Williams, 78 Misc.3d 1205[A], 2023 N.Y. Slip Op. 50158[U], 2023 WL 2379666 [Sup. Ct., Erie County] ).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) was a provident exercise of discretion, as it constituted an appropriate compromise which properly balanced the probative value of the proffered evidence against any potential prejudice to the defendant (see People v. Drach, 210 A.D.3d 795, 797, 178 N.Y.S.3d 158 ; People v. Benn, 210 A.D.3d 690, 691, 177 N.Y.S.3d 696 ).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
BARROS, J.P., WOOTEN, FORD and WARHIT, JJ., concur.