PEOPLE v. FERNANDEZ (2024)

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered March 30, 2023, 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 five years, unanimously affirmed.

Defendant's Second Amendment challenge to his conviction is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968, *2–7 [2023]), and we decline to review it in the interest of justice.  As an alternative holding, we find that, on the present record, defendant has failed to establish that his conviction is unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal, as it involves matters not reflected in the record, and should be raised by way of a CPL 440.10 motion (see People v. Holder, 224 A.D.3d 513, 203 N.Y.S.3d 331, 2024 N.Y. Slip Op. 00814 [1st Dept. 2024];  see also People v. Maffei, 35 N.Y.3d 264, 269–270, 127 N.Y.S.3d 403, 150 N.E.3d 1169 [2020]).