PEOPLE v. DRAKE (2024)

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

The PEOPLE of the State of New York, Respondent, v. Harvey DRAKE, Defendant–Appellant.

1876

Decided: March 19, 2024

Singh, J.P., González, Scarpulla, Higgitt, Rosado, JJ.

Twyla Carter, The Legal Aid Society, New York (Marquetta Christy of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.

Judgment, Supreme Court, Bronx County (April A. Newbauer, J., at plea; Steven Hornstein, J., at sentencing), rendered January 17, 2019, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him to five years' probation, unanimously affirmed.

Defendant's Second Amendment challenge is unpreserved, and we decline to consider it in the interest of justice (see People v. Cabrera, ––– NY3d ––––, ––––, 2023 N.Y. Slip Op 05968, *2–7 [2023]; People v. Guity, 223 AD3d 598, 599 [1st Dept 2024]). As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.02(8) is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022]), or that he would be entitled to vacatur of his conviction on that basis (see Guity, 223 Ad3d 598, *1; Duncan v. Bonta, 83 F4th 803, 805–806 [9th Cir2023]).

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