PEOPLE v. DANIELS (2024)

Judgment, Supreme Court, New York County (Abraham Clott, J.), rendered October 4, 2018, as amended February 13, 2019, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, unanimously affirmed.

Defendant's Second Amendment claim requires preservation (see People v. Cabrera, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968 [2023]), and we decline to review the unpreserved claim in the interest of justice.  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. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), or that he would be entitled to vacatur of his conviction on that basis.

The indictment's failure to allege that the gun was operable did not render it jurisdictionally defective.  By citing Penal Law § 265.03(3), the indictment alleged all the elements of criminal possession of a weapon in the second degree (see People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037 [1988];  People v. Cook, 150 A.D.3d 1543, 1543–1544, 52 N.Y.S.3d 680 [3d Dept. 2017]).  In any event, the indictment's reference to “armed felony” adequately alleged the element of operability (see People v. Luis R., 220 A.D.3d 549, 550, 198 N.Y.S.3d 33 [1st Dept. 2023];  CPL 1.20[41]).