| People v McWilliams |
| 2023 NY Slip Op 01389 [214 AD3d 1328] |
| March 17, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Quintin J. McWilliams, Appellant. |
Erik Teifke, Acting Public Defender, Rochester (Tonya Plank of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Martin P. McCarthy, II, of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran,J.), entered October 9, 2018. The judgment convicted defendant, upon his plea of guilty,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). We affirm.
Defendant contends that he is entitled to reversal of the judgment of conviction anddismissal of the indictment because the single statutory offense under which he wascharged and convicted (see id.) is facially unconstitutional under the SecondAmendment of the United States Constitution as interpreted by the United StatesSupreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (597US &mdash, 142 S Ct 2111 [2022]). Although defendant "d[id] not forfeit the right onappeal from the conviction to challenge the constitutionality of the statute under whichhe was convicted" by pleading guilty (People v Lee, 58 NY2d 491, 493 [1983])and he has notified the Attorney General of the State of New York pursuant to ExecutiveLaw § 71 that he is challenging the constitutionality of the statute on appeal(see People v Tucker, 181AD3d 103, 105 [4th Dept 2020], cert denied 592 US &mdash, 141 S Ct 566[2020]), defendant correctly concedes that his challenge to the constitutionality of thestatute is not preserved for our review inasmuch as he failed to raise any such challengebefore the trial court (see Peoplev Jacque-Crews, 213 AD3d 1335 [4th Dept 2023]; People v Gerow, 85 AD3d1319, 1320 [3d Dept 2011];cf. People v Hughes, 22 NY3d 44, 48-49 [2013]; see generally People v Reinard,134 AD3d 1407, 1409 [4th Dept 2015], lv denied 27 NY3d 1074 [2016],cert denied 580 US 969 [2016]).
Defendant nonetheless contends that his constitutional challenge to Penal Law§ 265.03 (3) should be exempt from the preservation requirement because,among other things, other states allow facial constitutional challenges to be raised for thefirst time on appeal. That, however, is not the law in New York. "The unconstitutionalityof a statute is not exempt from the requirement of preservation" (People v Scott, 126 AD3d645, 646 [1st Dept 2015], lv denied 25 NY3d 1171 [2015]; see People vIannelli, 69 NY2d 684, 685 [1986], cert denied 482 US 914 [1987];People v Dozier, 52 NY2d 781, 783 [1980]; People v Thomas, 50 NY2d467, 473 [1980]).
Defendant's attempts to invoke exceptions to the preservation rule are unavailinginasmuch as the United States Supreme Court's intervening decision in Bruenneither held any criminal statute unconstitutional (cf. People v Tannenbaum, 23NY2d 753, 753 [1968]) nor called into doubt New York's criminal prohibitions onunlicensed possession of firearms (cf. [*2]People vPatterson, 39 NY2d 288, 296 [1976], affd 432 US 197 [1977]; seegenerally Thomas, 50 NY2d at 472-473).
Defendant nonetheless asserts that preservation should not be required because itwould have been futile to raise his constitutional argument before Supreme Court. Wereject that assertion and conclude that defendant "should not be permitted to avoid theconsequences of the lack of preservation" on the basis that a constitutional challenge tothe Penal Law statute would ostensibly have been futile (People v Crum, 184 AD3d454, 455 [1st Dept 2020], lv denied 35 NY3d 1065 [2020]; see People v White, 189 AD3d634, 635 [1st Dept 2020], lv denied 36 NY3d 1101 [2021]; see also People v Cunningham,194 AD3d 954, 956 [2d Dept 2021], lv denied 37 NY3d 991 [2021]; People v Colon, 187 AD3d647, 648 [1st Dept 2020], lv denied 36 NY3d 1096 [2021]). Here,"[a]lthough [Bruen] had not yet been decided, and trial counsel may havereasonably declined to challenge the [constitutionality of Penal Law§ 265.03 (3)], defendant had the same opportunity to advocate for a changein the law as [any other] litigant" (Crum, 184 AD3d at 455; see generally People v Stewart,67 AD3d 553, 554 [1st Dept 2009], affd 16 NY3d 839 [2011]).
We decline to exercise our power to review defendant's constitutional challenge tothe statute under which he was convicted as a matter of discretion in the interest ofjustice (see CPL 470.15 [3] [c]).
Finally, defendant failed to preserve for our review his contention that the sentenceconstitutes cruel and unusual punishment (see People v Pena, 28 NY3d 727, 730 [2017]; People v Suprunchik, 208AD3d 1058, 1059 [4th Dept 2022]; People v Archibald, 148 AD3d 1794, 1795 [4th Dept2017], lv denied 29 NY3d 1075 [2017]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL470.15 [3] [c]). Present—Peradotto, J.P., Lindley, Bannister, Montour and Ogden,JJ.