Opinion
841 KA 19-02341
12-22-2023
The PEOPLE of the State of New York, Respondent, v. Lamark NIXON, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JONATHAN GARVIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JONATHAN GARVIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a plea of guilty of attempted criminal possession of a weapon in the second degree ( Penal Law §§ 110.00, 265.03 [3] ), defendant contends that Penal Law § 265.03 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). Inasmuch as defendant failed to raise a constitutional challenge to the statute before Supreme Court, any such contention is not preserved 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] ; 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] ), and we decline to exercise our power to review defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). Contrary to defendant's contentions, his "challenge to the constitutionality of a 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. Adames , 216 A.D.3d 519, 520, 188 N.Y.S.3d 479 [1st Dept. 2023], lv denied 40 N.Y.3d 949, 195 N.Y.S.3d 666, 217 N.E.3d 686 [2023] ).
Although defendant also contends that his waiver of the right to appeal is invalid, we note that resolution of that issue is of no moment inasmuch as his challenge with respect to the constitutionality of Penal Law § 265.03 would survive even a valid waiver of the right to appeal (see People v. Benjamin , 216 A.D.3d 1457, 1457, 186 N.Y.S.3d 876 [4th Dept. 2023] ; see also People v. Jordan , 169 A.D.3d 1357, 1358, 92 N.Y.S.3d 766 [4th Dept. 2019] ).