Opinion
978 KA 19-02220
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Corey CLINTON, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, GREENWOOD, AND NOWAK, 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 a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]), stemming from the shooting death of the victim. We affirm.
Defendant contends that County Court erred in granting the People's for-cause challenge to a prospective juror. Because defendant failed to object to the court's ultimate ruling on that for-cause challenge after the court conducted additional voir dire of the prospective juror, thereby acquiescing in the ruling, we conclude that defendant's contention is unpreserved for our review (see CPL 470.05 [2] ; People v. Smith , 200 A.D.3d 1689, 1691, 159 N.Y.S.3d 302 [4th Dept. 2021], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 443, 185 N.E.3d 964 [2022] ; People v. Crumpler , 163 A.D.3d 1457, 1460, 79 N.Y.S.3d 835 [4th Dept. 2018], lv denied 32 N.Y.3d 1003, 86 N.Y.S.3d 761, 111 N.E.3d 1117 [2018], reconsideration denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant also contends that his conviction of criminal possession of a weapon in the second degree under count 3 of the indictment ( Penal Law § 265.03 [3] ) 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 unpreserved 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 [his conviction under 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] ), and the mode of proceedings exception to the preservation requirement does not apply (see People v. David , ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05970, *3-4 [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 [6] [a] ).
Finally, contrary to defendant's contention, the court did not err in imposing consecutive sentences. The court sentenced defendant to, inter alia, an indeterminate term of 25 years to life on the murder count, and a consecutive determinate term of five years, plus five years of postrelease supervision, on count 3 of the indictment charging him with "simple" weapon possession ( Penal Law § 265.03 [3] ). When a defendant is so charged, "[s]o long as [the] defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible" ( People v. Brown , 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ; see People v. Malloy , 33 N.Y.3d 1078, 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673 [2019] ).
Here, the evidence at trial establishes that, on the night of the shooting, defendant and the victim were talking outside a corner store. After about 10 to 15 minutes of conversation, defendant pulled out a gun and shot the victim once in the head. We conclude that the evidence "support[ed] the conclusion that defendant possessed the weapon for a sufficient period of time before forming the specific intent to kill" ( Malloy , 33 N.Y.3d at 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673 ; see People v. Belton , 199 A.D.3d 1373, 1375, 157 N.Y.S.3d 210 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 708, 181 N.E.3d 1136 [2022] ; People v. Evans , 132 A.D.3d 1398, 1399, 17 N.Y.S.3d 576 [4th Dept. 2015], lv denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ).