PEOPLE v. GUITY (2024)

Judgment, Supreme Court, New York County (Michele Rodney, J.), rendered March 5, 2020, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), and criminal possession of a firearm (two counts), and sentencing him to an aggregate term of five years, unanimously affirmed.

Defendant argues that it is unconstitutional to convict him for unlicensed possession of a firearm – particularly given that he is licensed to carry firearms in another state – or for possession of a large-capacity magazine.  These challenges are unpreserved, and we decline to consider them in the interest of justice (see People v. Cabrera, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968, *2–7 [2023];  People v. Adames, 216 A.D.3d 519, 188 N.Y.S.3d 479 [1st Dept. 2023], lv denied 40 N.Y.3d 949, 195 N.Y.S.3d 666, 217 N.E.3d 686 [2023]).  As an alternative holding, considering defendant's arguments on the present record, we find that defendant has failed to establish that the challenged Penal Law violate either the Second Amendment (see New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 38 n 9, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022];  id. at 80, 142 S.Ct. 2111 [Kavanaugh, J., concurring];  People v. Garcia, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05969, *6–7 [2023] [Rivera, J., dissenting];  Duncan v. Bonta, 83 F.4th 803, 806 [9th Cir. 2023]) or the Privileges and Immunities Clause (see Bach v. Pataki, 408 F.3d 75, 91–94 [2d Cir. 2005], cert denied 546 U.S. 1174, 126 S.Ct. 1341, 164 L.Ed.2d 56 [2006], overruled on other grounds by McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 [2010]).

We likewise decline to reach defendant's remaining constitutional challenges, which are similarly unpreserved, and reject them too as an alternative holding.  Defendant failed to establish that the imposition of a higher sentence for unlawful possession of a firearm in public, as opposed to in-home possession, violates the Equal Protection or Due Process Clause (see People v. Parker, 41 N.Y.2d 21, 25, 390 N.Y.S.2d 837, 359 N.E.2d 348 [1976];  People v. Johnson, 38 A.D.3d 1057, 1059, 832 N.Y.S.2d 312 [3d Dept. 2007]).  The sentence imposed was not grossly disproportionate to the crime and, thus, did not violate defendant's Eighth Amendment right against cruel and unusual punishments (see People v. Thompson, 83 N.Y.2d 477, 611 N.Y.S.2d 470, 633 N.E.2d 1074 [1994]).

Defendant's application pursuant to (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [1986]) was properly denied on the ground that defendant did not make out a prima facie case of discrimination.  The numerical assertion, without more, was insufficient to satisfy his initial burden (see People v. Brown, 97 N.Y.2d 500, 507–508, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002];  People v. Guardino, 62 A.D.3d 544, 545–546, 880 N.Y.S.2d 244 [1st Dept. 2009], affd sub nom.  People v. Hecker, 15 N.Y.3d 625, 917 N.Y.S.2d 39, 942 N.E.2d 248 [2010], cert denied 563 U.S. 947, 131 S.Ct. 2117, 179 L.Ed.2d 911 [2011]).  Defendant's additional arguments based on the backgrounds of the prospective jurors are unpreserved, and we decline to address them in the interest of justice (see People v. Solares, 309 A.D.2d 502, 503, 765 N.Y.S.2d 239 [1st Dept. 2003], lv denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003]).

We find no basis for reducing defendant's sentence.