| People v Adames |
| 2023 NY Slip Op 02623 [216 AD3d 519] |
| May 16, 2023 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Willi Adames, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Barbara Zolot ofcounsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Emily N. Gault of counsel), forrespondent.
Judgment, Supreme Court, New York County (Abraham L. Clott, J.), renderedJanuary 27, 2016, convicting defendant, upon his plea of guilty, of criminal possession ofa weapon in the second degree, and sentencing him to a term of 3
Defendant did not preserve his claim that Penal Law § 265.03 (3) isunconstitutional in light of the United States Supreme Court's decision in New YorkState Rifle & Pistol Assn., Inc. v Bruen (597 US —, 142 S Ct 2111[2022]), or his related claim that the ineligibility of persons under 21 (such as himself atthe time of the crime) to apply for licenses to carry firearms violates the SecondAmendment. "This [preservation] requirement is no mere formalism, but ensures that thedrastic step of striking duly enacted legislation will be taken not in a vacuum but onlyafter the lower courts have had an opportunity to address the issue and theunconstitutionality of the challenged provision has been established" (People v Baumann & SonsBuses, Inc., 6 NY3d 404, 408 [2006]).
"[D]efendant should not be permitted to avoid the consequences of the lack ofpreservation" on the ground that a constitutional challenge to Penal Law§ 265.03 (3) would have been futile (People v Crum, 184 AD3d 454, 455 [1st Dept 2020], lvdenied 35 NY3d 1065 [2020]). Here, "[a]lthough [Bruen] had not yet beendecided, and trial counsel may have reasonably declined to challenge the[constitutionality of Penal Law § 265.03 (3)], defendant had the sameopportunity to advocate for a change in the law as [any other] litigant" (id.; see also People v McWilliams,214 AD3d 1328,1330 [4th Dept 2023]). Defendant is essentially making theargument that an "appellant should not be penalized for his failure to anticipate the shapeof things to come," but the Court of Appeals has expressly rejected that argument(People v Reynolds, 25 NY2d 489, 495 [1969]). This preservation principleapplies to constitutional claims (see e.g. People v Friola, 11 NY2d 157 [1962][Fourth Amendment]; People v Crum, 184 AD3d at 455 [same]; People v Scott, 126 AD3d645, 646 [1st Dept 2015], lv denied 25 NY3d 1171 [2015] [unconstitutionalstatute]; People v Lopez, 25AD3d 385 [1st Dept 2006], lv denied 7 NY3d 758 [2006] [ConfrontationClause]). People v Patterson (39 NY2d 288, 295-296 [1976], affd 432 US197 [1977]), which deals, in pertinent part, with retroactivity and mode of proceedingserrors exempt from preservation, is not to the contrary.
We decline to consider defendant's unpreserved argument in the interest of justice.As an alternative holding, we find that on the present record, defendant has failed toestablish that Penal Law § 265.03 (3) is unconstitutional.
Based on our own interest of justice powers and the People's consent, we vacate thesurcharge and fees imposed at sentencing (see People [*2]v Chirinos, 190AD3d 434 [1st Dept 2021]). Concur—Renwick, A.P.J., Webber, Oing, Singh,Kennedy, JJ.