Opinion
No. 80 KA 21-00758
02-09-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANDRE D. WILLIAMS, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND KEANE, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered April 5, 2021. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). We affirm.
Defendant contends that Penal Law § 265.03 (3) is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022]). Defendant failed to raise a constitutional challenge before Supreme Court, however, and therefore any such contention is unpreserved for our review (see People v Jacque-Crews, 213 A.D.3d 1335, 1335-1336 [4th Dept 2023], lv denied 39 N.Y.3d 1111 [2023]; see generally People v Davidson, 98 N.Y.2d 738, 739-740 [2002]; People v Reinard, 134 A.D.3d 1407, 1409 [4th Dept 2015], lv denied 27 N.Y.3d 1074 [2016], cert denied 580 U.S. 969 [2016]). Defendant's "challenge to the constitutionality of [the] statute must be preserved" (People v Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408 [2006], rearg denied 7 N.Y.3d 742 [2006]; see People v Cabrera, __N.Y.3d__, 2023 NY Slip Op 05968, *2-7 [2023]).
Similarly, because he did not move to withdraw his guilty plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that he did not knowingly, voluntarily, and intelligently enter the plea (see generally People v Shanley, 189 A.D.3d 2108, 2108 [4th Dept 2020]). Moreover, the narrow exception to the preservation rule set forth in People v Lopez (71 N.Y.2d 662, 666 [1988]) does not apply here.
We agree with defendant, and the People correctly concede, that his waiver of the right to appeal is invalid (see People v Thomas, 34 N.Y.3d 545, 564-566 [2019], cert denied __US__, 140 S.Ct. 2634 [2020]). However, contrary to defendant's contention, his sentence is not unduly harsh or severe.