PEOPLE v. CHERIF (2023)

Judgment, Supreme Court, New York County (Thomas Farber, J. at plea;  Abraham Clott, J. at sentencing), rendered July 19, 2022, convicting defendant of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of one year, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed on defendant at sentencing, and otherwise affirmed.

Defendant's Second Amendment claim is unpreserved, and we decline to address it in the interest of justice (see People v. Adames, 216 A.D.3d 519, 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 Penal Law § 265.03(3) is unconstitutional under (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]), or that he would be entitled to vacatur of his conviction on that basis.

Based on our own interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing (see People v. Chirinos, 190 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).  We note that the People do not oppose this relief.