| People v Holder |
| 2024 NY Slip Op 00814 [224 AD3d 513] |
| February 15, 2024 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Diandre Holder, Appellant. |
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Ben A. Schatz ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Tara A. Collins, J.), rendered November14, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possessionof a weapon in the second degree, and sentencing him to a term of two years,unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v Thomas, 34 NY3d545 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]), whichforecloses review of his excessive sentence claim. In any event, we perceive no basis forreducing the sentence.
Defendant's Second Amendment claim requires preservation (see People vCabrera, 41 NY3d 35 [2023]), and we decline toreview the unpreserved claim in the interest of justice. As an alternative holding, we findthat 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 would be entitled to vacaturof his conviction on that basis.
Defendant's contention that his counsel rendered ineffective assistance by failing topreserve his Second Amendment claim is unreviewable on direct appeal because itinvolves matters not reflected in the record and, thus, must be raised in a CPL 440.10motion (see People vGomez, 186 AD3d 422, 423-424 [1st Dept 2020]). Concur—Moulton,J.P., Friedman, Gesmer, Mendez, Rodriguez, JJ.