Opinion
03-22-2024
The PEOPLE of the State of New York, Respondent, v. Jeffrey SAPP, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered July 22, 2020. The judgment convicted defendant upon a guilty plea of attempted criminal possession of a weapon in the second degree.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, OGDEN, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]), defendant contends that Penal Law § 265.03 is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Defendant failed to raise a constitutional challenge before the trial court, however, and therefore any such contention is un-preseived for our review (see People v. Jacque-Crews, 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023]; see generally People v. Davidson, 98 N.Y.2d 738, 739-740, 751 N.Y.S.2d 161, 780 N.E.2d 972 [2002]; 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 580 U.S. 969, 137 S.Ct. 392, 196 L.Ed.2d 308 [2016]). Contrary to defendant’s contention, his "challenge to the constitutionality of [the] statute must be preserved" (People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006], rearg denied 7 N.Y.3d 742, 819 N.Y.S.2d 876, 853 N.E.2d 247 [2006]; see People v. Cabrera, — N.Y.3d —,—, — N.Y.S.3d—, — N.E.3d —, 2023 N.Y. Slip Op. 05968, *2-7 [2023]). We decline to exercise our power to review defendant’s constitutional challenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
As defendant contends and the People correctly concede, we need not consider whether he validly waived his right to appeal inasmuch as his challenge with respect to the constitutionality of Penal Law § 265.03 would survive even a valid waiver (see People v. Benjamin, 216 A.D.3d 1457, 1457, 186 N.Y.S.3d 876 [4th Dept. 2023]; see generally People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]).