PEOPLE v. STONE (2024)

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered December 7, 2022, convicting defendant, upon a plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years to be followed by five years of postrelease supervision, unanimously affirmed.

Defendant's challenge to the constitutionality of his 2016 gun possession conviction, which the court relied on to adjudicate him a second violent felony offender in the instant case, is both unpreserved and waived based on defendant's failure to challenge the predicate conviction as unconstitutional at sentencing (see CPL 400.15[7][b];  People v. Lara, 167 A.D.3d 446, 448, 89 N.Y.S.3d 154 [1st Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 216, 122 N.E.3d 1129 [2019]).  We reject defendant's contention that counsel was ineffective in failing to challenge the predicate conviction and thus that he has established good cause for the omission.  A challenge to defendant's prior conviction based on (New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]) would have been futile (see e.g. People v. Cherif, 220 A.D.3d 543, 543, 196 N.Y.S.3d 457 [1st Dept. 2023], lv. denied 40 N.Y.3d 1079, 202 N.Y.S.3d 766, 225 N.E.3d 885 [2023];  People v. DeLarosa, 219 A.D.3d 1230, 195 N.Y.S.3d 466 [1st Dept. 2023], lv. denied 40 N.Y.3d 1080, 202 N.Y.S.3d 757, 225 N.E.3d 876 [2023];  see also People v. Williams, 35 N.Y.3d 24, 45, 124 N.Y.S.3d 593, 147 N.E.3d 1131 [2020]).