Opinion
98 KA 20-00059
03-17-2023
The PEOPLE of the State of New York, Respondent, v. Quintin J. MCWILLIAMSA.D.3d 1319, 1320, 925 N.Y.S.2d 243 [3d
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, BANNISTER, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER 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 criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). We affirm.
Defendant contends that he is entitled to reversal of the judgment of conviction and dismissal of the indictment because the single statutory offense under which he was charged and convicted (see id. ) is facially unconstitutional under the Second Amendment of the United States Constitution as interpreted by the United States Supreme Court in ( New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S. Ct. 2111, 213 L.Ed.2d 387 [2022] [ Bruen ]). Although defendant "d[id] not forfeit the right on appeal from the conviction to challenge the constitutionality of the statute under which he was convicted" by pleading guilty ( People v. Lee , 58 N.Y.2d 491, 493, 462 N.Y.S.2d 417, 448 N.E.2d 1328 [1983] ) and he has notified the Attorney General of the State of New York pursuant to Executive Law § 71 that he is challenging the constitutionality of the statute on appeal (see People v. Tucker , 181 A.D.3d 103, 105, 117 N.Y.S.3d 401 [4th Dept. 2020], cert denied ––– U.S. ––––, 141 S. Ct. 566, 208 L.Ed.2d 182 [2020] ), defendant correctly concedes that his challenge to the constitutionality of the statute is not preserved for our review inasmuch as he failed to raise any such challenge before the trial court (see People v. Jacque-Crews , 213 A.D.3d 1335, 183 N.Y.S.3d 234, 2023 N.Y. Slip Op. 00785 [4th Dept. 2023] ; People v. Gerow , 85 A.D.3d 1319, 1320, 925 N.Y.S.2d 243 [3d Dept. 2011] ; cf. People v. Hughes , 22 N.Y.3d 44, 48-49, 978 N.Y.S.2d 97, 1 N.E.3d 298 [2013] ; see generally People v. Reinard , 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 392, 196 L.Ed.2d 308 [2016] ).
Defendant nonetheless contends that his constitutional challenge to Penal Law § 265.03 (3) should be exempt from the preservation requirement because, among other things, other states allow facial constitutional challenges to be raised for the first time on appeal. That, however, is not the law in New York. "The unconstitutionality of a statute is not exempt from the requirement of preservation" ( People v. Scott , 126 A.D.3d 645, 646, 6 N.Y.S.3d 247 [1st Dept. 2015], lv denied 25 N.Y.3d 1171, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] ; see People v. Iannelli , 69 N.Y.2d 684, 685, 512 N.Y.S.2d 16, 504 N.E.2d 383 [1986], cert denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673 [1987] ; People v. Dozier , 52 N.Y.2d 781, 783, 436 N.Y.S.2d 620, 417 N.E.2d 1008 [1980] ; People v. Thomas , 50 N.Y.2d 467, 473, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ).
Defendant's attempts to invoke exceptions to the preservation rule are unavailing inasmuch as the United States Supreme Court's intervening decision in Bruen neither held any criminal statute unconstitutional (cf. People v. Tannenbaum , 23 N.Y.2d 753, 753, 296 N.Y.S.2d 798, 244 N.E.2d 269 [1968] ) nor called into doubt New York's criminal prohibitions on unlicensed possession of firearms (cf. People v. Patterson , 39 N.Y.2d 288, 296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], affd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977] ; see generally Thomas , 50 N.Y.2d at 472-473, 429 N.Y.S.2d 584, 407 N.E.2d 430 ).
Defendant nonetheless asserts that preservation should not be required because it would have been futile to raise his constitutional argument before Supreme Court. We reject that assertion and conclude that defendant "should not be permitted to avoid the consequences of the lack of preservation" on the basis that a constitutional challenge to the Penal Law statute would ostensibly have been futile ( People v. Crum , 184 A.D.3d 454, 455, 126 N.Y.S.3d 7 [1st Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 404, 152 N.E.3d 1206 [2020] ; see People v. White , 189 A.D.3d 634, 635, 136 N.Y.S.3d 299 [1st Dept. 2020], lv denied 36 N.Y.3d 1101, 144 N.Y.S.3d 128, 167 N.E.3d 1263 [2021] ; see also People v. Cunningham , 194 A.D.3d 954, 956, 147 N.Y.S.3d 140 [2d Dept. 2021], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 414, 174 N.E.3d 354 [2021] ; People v. Colon , 187 A.D.3d 647, 648, 134 N.Y.S.3d 326 [1st Dept. 2020], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 150, 167 N.E.3d 1285 [2021] ). Here, "[a]lthough [ Bruen ] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3) ], defendant had the same opportunity to advocate for a change in the law as [any other] litigant" ( Crum , 184 A.D.3d at 455, 126 N.Y.S.3d 7 ; see generally People v. Stewart , 67 A.D.3d 553, 554, 889 N.Y.S.2d 173 [1st Dept. 2009], affd 16 N.Y.3d 839, 923 N.Y.S.2d 404, 947 N.E.2d 1182 [2011] ).
We decline to exercise our power to review defendant's constitutional challenge to the statute under which he was convicted as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Finally, defendant failed to preserve for our review his contention that the sentence constitutes cruel and unusual punishment (see People v. Pena , 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 [2017] ; People v. Suprunchik , 208 A.D.3d 1058, 1059, 172 N.Y.S.3d 781 [4th Dept. 2022] ; People v. Archibald , 148 A.D.3d 1794, 1795, 51 N.Y.S.3d 310 [4th Dept. 2017], lv denied 29 N.Y.3d 1075, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).