Opinion
No. 111553B
11-09-2023
The People of the State of New York, Respondent, v. Shacream Morris-Caldwell, Appellant.
Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Calendar Date:October 18, 2023
Tina K. Sodhi, Alternate Public Defender, Albany (Steven M. Sharp of counsel), for appellant.
P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Before: Clark, J.P., Aarons, Pritzker, Ceresia and Fisher, JJ.
Clark, J.P.
Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered November 8, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted criminal possession of a weapon in the second degree. Following negotiations, defendant was afforded the opportunity to plead guilty to the charged crime with the understanding that he would be sentenced to a prison term of five years followed by five years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the agreement, and County Court imposed the agreed-upon sentence. This appeal ensued.
We affirm. The People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid (see People v Finn, 215 A.D.3d 1179, 1180 [3d Dept 2023], lv denied 40 N.Y.3d 928 [2023]; People v Hardie, 211 A.D.3d 1418, 1419 [3d Dept 2022], lv denied 39 N.Y.3d 1111 [2023]; People v Smith, 208 A.D.3d 1538, 1539 [3d Dept 2022]). Accordingly, defendant's challenge to the severity of his sentence is not precluded (see People v Davis, 199 A.D.3d 1123, 1124-1125 [3d Dept 2021], lv denied 37 N.Y.3d 1160 [2022]). That said, upon reviewing the record and taking into consideration all of the relevant factors, we do not find the negotiated sentence to be unduly harsh or severe and decline defendant's invitation to reduce it in the interest of justice (see CPL 470.15 [6] [b]; People v Turner, 217 A.D.3d 1260, 1261 [2023]). Defendant's remaining claim - that his conviction under Penal Law § 265.03 (3) is unconstitutional in light of the Supreme Court of the United States' decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. ___, 142 S.Ct. 2111 [2022]) - is unpreserved for our review due to defendant's failure to raise such challenge before County Court (see People v Maddox, 218 A.D.3d 1154, 1154-1155 [4th Dept 2023]; People v Hall, 217 A.D.3d 1501, 1502 [4th Dept 2023], lv denied 40 N.Y.3d 997 [2023]; People v Benjamin, 216 A.D.3d 1457, 1457 [4th Dept 2023]; People v Fricke, 216 A.D.3d 1446, 1447 [4th Dept 2023], lv denied 40 N.Y.3d 928 [2023]).
Aarons, Pritzker, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.