Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Andre PORTIS, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Sam L. Valleriani, J.), rendered August 6, 2019. The judgment convicted defendant upon a plea of guilty of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree (three counts).
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
[1] Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1]), and three counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). We agree with defendant, and the People correctly concede, that his waiver of the right to appeal is invalid because County Court’s oral colloquy and the written waiver of the right to appeal provided defendant with erroneous information about the scope of the waiver and failed to identify that certain rights would survive the waiver (see People v. Thomas, 34 N.Y.3d 545, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied — U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]; People v. Washington, 208 A.D.3d 1649, 1649, 174 N.Y.S.3d 666 [4th Dept. 2022], lv denied 39 N.Y.3d 965, 179 N.Y.S.3d 171, 200 N.E.3d 116 [2022]; People v. McMillian, 185 A.D.3d 1420, 1421, 127 N.Y.S.3d 669 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 306, 155 N.E.3d 799 [2020]).
[2] Defendant’s challenge to the constitutionality of Penal Law § 265.03 (1) (b) and (3) 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]) is not preserved for our review (see CPL 470.05 [2]; People v. McWilliams, 214 A.D.3d 1328, 1329, 186 N.Y.S.3d 470 [4th Dept. 2023], lv denied 39 N.Y.3d 1156, 190 N.Y.S.3d 674, 211 N.E.3d 1127 [2023]; 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]). Moreover, as defense counsel correctly conceded at oral argument of this appeal, defendant’s "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]). 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 [3] [c]).
The sentence is not unduly harsh or severe.
[3] As the People concede, however, the certificate of conviction must be corrected to reflect defendant’s status as a second felony offender rather than a second violent felony offender (see People v. Nelson, 206 A.D.3d 1703, 1704, 169 N.Y.S.3d 771 [4th Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 26, 194 N.E.3d 733 [2022]; People v. Mobayed, 158 A.D.3d 1221, 1223, 70 N.Y.S.3d 267 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018]). In addition, as the People concede, the certifi- cate of conviction erroneously states that the offense charged in count 5 of the indictment occurred on April 12, 2018, when the actual date of the offense was April 30, 2018. The certificate of conviction must also be amended to correct that clerical error (see generally People v. McCoy, 174 A.D.3d 1379, 1382, 106 N.Y.S.3d 447 [4th Dept. 2019], lv denied 34 N.Y.3d 982, 113 N.Y.S.3d 653, 137 N.E.3d 23 [2019], reconsideration denied 35 N.Y.3d 994, 125 N.Y.S.3d 634, 149 N.E.3d 395 [2020]).