Contrary to the People's contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bisono, 36 N.Y.3d 1013; People v Thomas, 34 N.Y.3d 545, 566; People v Hope, 192 A.D.3d 1044). The Supreme Court's colloquy "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief" (People v Tayeh, 181 A.D.3d 726, 727; see People v Bisono, 36 N.Y.3d 1013; People v Thomas, 34 N.Y.3d at 565-566).

ORDERED that the judgment is affirmed. Contrary to the People's contention, the record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (seePeople v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d 545, 566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Hope, 192 A.D.3d 1044, 141 N.Y.S.3d 317 ). The Supreme Court's colloquy "mischaracterized the appellate rights waived as encompassing an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief" ( People v. Tayeh, 181 A.D.3d 726, 727, 117 N.Y.S.3d 606 ; seePeople v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ; People v. Thomas, 34 N.Y.3d at 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

The defendant contends that his rights to due process of law and equal protection of the laws were violated because he was adjudicated as a second felony offender based upon his 2015 conviction of felony criminal possession of a firearm pursuant to Penal Law § 265.01-b, based on conduct which could have been punishable as a misdemeanor pursuant to Penal Law § 265.01(1). However, the overlapping elements of the felony crime of criminal possession of a weapon and the misdemeanor crime of criminal possession of a weapon, when the weapon possessed is a firearm, and the opportunity presented thereby for prosecutorial discretion regarding which crime to charge, do not render the felony statute unconstitutional (see United States v Batchelder, 442 U.S. 114, 125; People v Vaccaro, 44 N.Y.2d 885, 886; People v Eboli, 34 N.Y.2d 281, 290; People v Talbot, 194 A.D.3d 757, 758; People v Hope, 192 A.D.3d 1044). Moreover, we reject the defendant's contention that he was improperly adjudicated a second felony offender at his resentencing because his plea to a superior court information should not have been used as a predicate felony conviction since he did not validly waive his right to indictment.

e defendant contends that his rights to due process of law and equal protection of the laws were violated because he was adjudicated as a second felony offender based upon his 2015 conviction of felony criminal possession of a firearm pursuant to Penal Law § 265.01–b, based on conduct which could have been punishable as a misdemeanor pursuant to Penal Law § 265.01(1). However, the overlapping elements of the felony crime of criminal possession of a weapon and the misdemeanor crime of criminal possession of a weapon, when the weapon possessed is a firearm, and the opportunity presented thereby for prosecutorial discretion regarding which crime to charge, do not render the felony statute unconstitutional (seeUnited States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 ; People v. Vaccaro, 44 N.Y.2d 885, 886, 407 N.Y.S.2d 631, 379 N.E.2d 159 ; People v. Eboli, 34 N.Y.2d 281, 290, 357 N.Y.S.2d 435, 313 N.E.2d 746 ; People v. Talbot, 194 A.D.3d 757, 758, 143 N.Y.S.3d 579 ; People v. Hope, 192 A.D.3d 1044, 141 N.Y.S.3d 317 ). Moreover, we reject the defendant's contention that he was improperly adjudicated a second felony offender at his resentencing because his plea to a superior court information should not have been used as a predicate felony conviction since he did not validly waive his right to indictment.

Consequently, the purported waiver does not preclude appellate review of the contention raised by the defendant on this appeal. Nevertheless, the defendant's contention that his conviction of the felony of criminal possession of a firearm ( Penal Law § 265.01–b ) violated due process, equal protection, and the rule of lenity because the same conduct is punishable as a misdemeanor as criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 ) is unpreserved for appellate review (see CPL 470.05[2] ; People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 ; People v. Cesar, 131 A.D.3d 223, 227, 14 N.Y.S.3d 100 ), and, in any event, without merit (seeUnited States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 ; People v. Vaccaro, 44 N.Y.2d 885, 886, 407 N.Y.S.2d 631, 379 N.E.2d 159 ; People v. Eboli, 34 N.Y.2d 281, 290, 357 N.Y.S.2d 435, 313 N.E.2d 746 ; People v. Hope, 192 A.D.3d 1044, 141 N.Y.S.3d 317, 2021 N.Y. Slip Op. 01787 ; see alsoPeople v. Roberts, 31 N.Y.3d 406, 423–424, 79 N.Y.S.3d 597, 104 N.E.3d 701 ). RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

The defendant contends that his rights to due process of law and equal protection of the laws were violated because he was adjudicated as a second felony offender based upon his 2015 conviction of felony criminal possession of a firearm pursuant to Penal Law § 265.01-b, based on conduct which could have been punishable as a misdemeanor pursuant to Penal Law § 265.01(1). However, the overlapping elements of the felony crime of criminal possession of a weapon and the misdemeanor crime of criminal possession of a weapon, when the weapon possessed is a firearm, and the opportunity presented thereby for prosecutorial discretion regarding which crime to charge, do not render the felony statute unconstitutional (see United States v Batchelder, 442 U.S. 114, 125; People v Vaccaro, 44 N.Y.2d 885, 886; People v Eboli, 34 N.Y.2d 281, 290; People v Talbot, 194 A.D.3d 757, 758; People v Hope, 192 A.D.3d 1044). Moreover, we reject the defendant's contention that he was improperly adjudicated a second felony offender at his resentencing because his plea to a superior court information should not have been used as a predicate felony conviction since he did not validly waive his right to indictment.