PEOPLE v. SWIFT (2023)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Carl SWIFT, Defendant–Appellant.

612 Decided: September 26, 2023

Renwick, P.J., Moulton, Kennedy, Scarpulla, Higgitt, JJ.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.

Judgment, Supreme Court, New York County (Michele S. Rodney, J.), rendered July 23, 2021, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him as a second felony offender to a term of five years, unanimously affirmed.

Defendant did not preserve his Second Amendment challenge, based on the United States Supreme Court decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022)), to Penal Law § 265.03(3), and we decline to review the claim in the interest of justice (see People v. Adames, 216 A.D.3d 519, 519–520, 188 N.Y.S.3d 479 [1st Dept. 2023]). As an alternative holding, we find that on the present record, defendant has failed to establish that his conviction was unconstitutional.

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