Opinion
No. 2018-13139 Ind. No. 2112/14
12-20-2023
The People of the State of New York, respondent, v. Anthony Guyton, appellant.
Patricia Pazner, New York, NY (Kathleen Whooley and White & Case, LLP [Esther Kozakevich and Sven Volkmer], of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel), for respondent.
Patricia Pazner, New York, NY (Kathleen Whooley and White & Case, LLP [Esther Kozakevich and Sven Volkmer], of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. LARA J. GENOVESI, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered September 26, 2018, convicting him of criminal possession of a weapon in the second 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 based upon his unlawful possession of a loaded firearm (Penal Law § 265.03[3]), contends that the ruling of the Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (___ U.S. ___, 142 S.Ct. 2111), rendered Penal Law § 265.03 unconstitutional. However, the defendant's failure to raise this contention before the Supreme Court renders it unpreserved for appellate review (see Peopl v Cabrera, _____ N.Y.3d ____, 2023 NY Slip Op 05968), and we decline to reach it in the exercise of our interest of justice jurisdiction.
The defendant's contention that the Supreme Court failed to determine whether one of the jurors was "grossly unqualified to serve" (CPL 270.35[1]; see People v Buford, 69 N.Y.2d 290, 299) is also unpreserved for appellate review (see CPL 470.05[2]; People v Bailey, 32 N.Y.3d 70, 78, 77; People v Simmons, 97 A.D.3d 842, 843). In any event, "[a]bsent some indication that the... juror had engaged in some disqualifying conduct" (People v Mejias, 21 N.Y.3d 73, 80), the fact that a juror made an apparent facial expression of disappointment upon being seated was not sufficient to trigger an inquiry of the juror pursuant to People v Buford (see People v Major, 143 A.D.3d 1155, 1156; People v Benet, 45 A.D.3d 1449, 1451).
Contrary to the defendant's contention, "[v]iewing the sentencing court's comments as a whole, it is clear that the sentence imposed was not based upon crimes of which the defendant was acquitted" (People v Robinson, 250 A.D.2d 629, 629; see People v Sims, 199 A.D.3d 841). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and VOUTSINAS, JJ., concur.