Opinion
03-20-2024
The PEOPLE, etc., respondent, v. Tyreik BYNUM, appellant.
Patricia Pazner, New York, NY (Elisabeth R. Calcaterra of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel; Darci Wen Siegel on the brief), for respondent.
Patricia Pazner, New York, NY (Elisabeth R. Calcaterra of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel; Darci Wen Siegel on the brief), for respondent.
HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rhonda Tomlinson, J.), rendered November 22, 2022, convicting him of criminal possession of a weapon in the second de- gree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge and fees; as so modified, the judgment is affirmed.
The defendant’s contention that Penal Law § 265.03 is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v. Kruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387, is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Manners, 217 A.D.3d 683, 685, 191 N.Y.S.3d 90), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. Fulton, 222 A.D.3d 991, 992, 200 N.Y.S.3d 112; People v. Moise, 220 A.D.3d 811, 811, 196 N.Y.S.3d 789).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
As consented to by the People, and pursuant to the exercise of our interest of justice jurisdiction, we modify the judgment. by vacating the surcharge and fees imposed on the defendant at sentencing (see CPL 420.35[2-a][c]; People v. Jaaber, 223 A.D.3d 685, 202 N.Y.S.3d 457).
LASALLE, P.J., CHAMBERS, VOUTSINAS and TAYLOR, JJ., concur.