Opinion
03-06-2024
The PEOPLE, etc., respondent, v. Richard JOHNSON, appellant.
Gary E. Eisenberg, New City, NY, for appellants. Miriam E. Rocah, District Attorney, White Plains, NY (Jill Oziemblewski and Raffaelina Gianfrancesco of counsel), for respondent.
Gary E. Eisenberg, New City, NY, for appellants.
Miriam E. Rocah, District Attorney, White Plains, NY (Jill Oziemblewski and Raffaelina Gianfrancesco of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, LARA J. GENOVESI, LOURDES M. VENTURA, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Westchester County (David S. Zuckerman, J.), rendered January 15, 2020, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed;
[1] The defendant, who was convicted of criminal possession of a weapon in the second degree (Penal Law § 265.03) and two counts of criminal possession of a weapon in the third degree (id. § 265.02), contends that the decision of the United States Supreme Court in. (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387) rendered his convictions of those offenses unconstitutional. However, the defendant’s contention is unpreserved for appellate review, as he failed to raise a constitutional challenge before the County Court (see People v. Cabrera, 41 N.Y.3d 35, — N.Y.S.3d —, — N.E.3d —People v. Joyce, 219 A.D.3d 627, 194 N.Y.S.3d 303; People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90),, and we decline to reach it in the exercise of our interest of justice jurisdiction.
[2] The defendant’s contention that his convictions were not based upon legally sufficient evidence is not preserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally suffident to establish the defendant’s guilt beyond a reasonable doubt (see People v. Boyd, 153 A.D.3d 1608, 61 N.Y.S.3d 431; People v. Ridore, 273 A.D.2d 154, 710 N.Y.S.2d 344). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The fact that the defendant’s status as a second felony offender was based upon his conviction of a felony, which was later reclassified as a misdemeanor (see People v. Hall, 202 A.D.3d 1485, 162 N.Y.S.3d 627; People v. Ramos, 202 A.D.3d 410, 162 N.Y.S.3d 334; compare former Penal Law § 221.25, with Penal Law § 222.30), did not affect his status as a second felony offender (see People v. Butler, 92 A.D.2d 1071, 461 N.Y.S.2d 913; People v. McMillen, 80 A.D.2d 966, 438 N.Y.S.2d 627; People v. Klein, 280 App.Div. 897, 115 N.Y.S.2d 533, affd 305 N.Y. 766, 113 N.E.2d 155). Further, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant’s remaining contentions are without merit.
BARROS, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.