PEOPLE v. STEWART (2024)

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

The PEOPLE of the State of New York, Respondent, v. Jehvon STEWART, Defendant–Appellant.

2156

Decided: April 30, 2024

Singh, J.P., Gesmer, Kennedy, Scarpulla, Pitt–Burke, JJ.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Alexandra Ricks of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Elliott R. Hamilton of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Alvin Yearwood, J.), rendered May 12, 2021, 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 made a valid waiver of his right to appeal (see People v. Thomas, 34 NY3d 545 [2019], cert denied 589 U.S. ––––, 140 S Ct 2634 [2020]), which forecloses review of his Second Amendment claim (see People v. Johnson, 225 AD3d 453 [1st Dept 2024]; People v. Jackson, 225 AD3d 547 [1st Dept 2024]; People v. Khan, ––– AD3d ––––, 2024 N.Y. Slip Op 01682 [1st Dept 2024]).

Moreover, defendant's claim is unpreserved (see People v. Cabrera, 41 NY3d 35, 42–51 [2023]), and we decline to consider it in the interest of justice. As an alternative holding, we find that on the present record, defendant has not demonstrated that he has standing to challenge Penal Law § 265.03(3), or that this statute is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022]) (see Johnson, 225 AD3d at 453; Jackson, 225 AD3d 547; Khan, 2024 N.Y. Slip Op 01682).

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