| People v Guity |
| 2024 NY Slip Op 00363 [223 AD3d 598] |
| January 25, 2024 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Melvin Guity, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (BenjaminRutkin-Becker of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michele Rodney, J.), rendered March5, 2020, convicting defendant, after a jury trial, of criminal possession of a weapon in thesecond degree, criminal possession of a weapon in the third degree (two counts), andcriminal possession of a firearm (two counts), and sentencing him to an aggregate termof five years, unanimously affirmed.
Defendant argues that it is unconstitutional to convict him for unlicensed possessionof a firearm—particularly given that he is licensed to carry firearms in anotherstate—or for possession of a large-capacity magazine. These challenges areunpreserved, and we decline to consider them in the interest of justice (see People vCabrera, 41 NY3d 35, 40-47 [2023];People v Adames, 216AD3d 519 [1st Dept 2023], lv denied 40 NY3d 949 [2023]). As analternative holding, considering defendant's arguments on the present record, we find thatdefendant has failed to establish that the challenged Penal Law violate either the SecondAmendment (see New York State Rifle & Pistol Assn., Inc. v Bruen, 597US 1, 38 n 9 [2022]; id. at 80 [Kavanaugh, J., concurring]; People vGarcia, 41 NY3d 62, 76-78 [2023,Rivera, J., dissenting]; Duncan v Bonta, 83 F4th 803, 806 [9th Cir 2023]) or thePrivileges and Immunities Clause (see Bach v Pataki, 408 F3d 75, 91-94 [2d Cir2005], cert denied 546 US 1174 [2006], overruled on other grounds byMcDonald v Chicago, 561 US 742 [2010]).
We likewise decline to reach defendant's remaining constitutional challenges, whichare similarly unpreserved, and reject them too as an alternative holding. Defendant failedto establish that the imposition of a higher sentence for unlawful possession of a firearmin public, as opposed to in-home possession, violates the Equal Protection or DueProcess Clause (see People v Parker, 41 NY2d 21, 25 [1976]; People v Johnson, 38 AD3d1057, 1059 [3d Dept 2007]). The sentence imposed was not grossly disproportionateto the crime and, thus, did not violate defendant's Eighth Amendment right against crueland unusual punishments (see People v Thompson, 83 NY2d 477 [1994]).
Defendant's application pursuant to Batson v Kentucky (476 US 79 [1986])was properly denied on the ground that defendant did not make out a prima facie case ofdiscrimination. The numerical assertion, without more, was insufficient to satisfy hisinitial burden (see People v Brown, 97 NY2d 500, 507-508 [2002]; People v Guardino, 62 AD3d544, 545-546 [1st Dept 2009], affd 15 NY3d 625 [2010], cert denied563 US 947 [2011]). Defendant's additional arguments based on the backgrounds of theprospective jurors are unpreserved, and we decline to address them in the interest ofjustice (see People v Solares, 309 AD2d 502, 503 [1st Dept 2003], lvdenied 1 NY3d 581 [2003]).
We find no basis for reducing defendant's sentence. Concur—Singh, J.P.,Moulton, Kapnick, Shulman, Rosado, JJ.