| People v Cherif |
| 2023 NY Slip Op 05325 [220 AD3d 543] |
| October 19, 2023 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Abdourahman Cherif, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem ofcounsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas Farber, J., at plea; AbrahamClott, J., at sentencing), rendered July 19, 2022, convicting defendant of attemptedcriminal possession of a weapon in the second degree, and sentencing him to a term ofone year, unanimously modified, as a matter of discretion in the interest of justice, to theextent of vacating the surcharge and fees imposed on defendant at sentencing, andotherwise affirmed.
Defendant's Second Amendment claim is unpreserved, and we decline to address itin the interest of justice (seePeople v Adames, 216 AD3d 519 [1st Dept 2023]). As an alternative holding,we find that on the present record, defendant has failed to establish that Penal Law§ 265.03 (3) is unconstitutional under New York State Rifle &Pistol Assn., Inc. v Bruen (597 US 1 [2022]), or that he wouldbe entitled to vacatur of his conviction on that basis.
Based on our own interest of justice powers, we vacate the surcharge and feesimposed on defendant at sentencing (see People v Chirinos, 190 AD3d 434 [1st Dept 2021]). Wenote that the People do not oppose this relief. Concur—Manzanet-Daniels, J.P.,Kern, Scarpulla, Mendez, O'Neill Levy, JJ.