PEOPLE v. ANDERSON (2025)

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered November 23, 2016, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Defendant's Second Amendment claim is unpreserved (see People v. Cabrera, 41 N.Y.3d 35, 50, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [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 failed to demonstrate that he has standing to challenge Penal Law § 265.03(3) (see People v. Johnson, 225 A.D.3d 453, 455, 206 N.Y.S.3d 584 [1st Dept. 2024], lv granted 42 N.Y.3d 939, 217 N.Y.S.3d 895, 242 N.E.3d 680 [2024]), that his conviction 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 (see People v. Daniels, 224 A.D.3d 554, 203 N.Y.S.3d 600 [1st Dept. 2024], lv denied 41 N.Y.3d 982, 210 N.Y.S.3d 749, 234 N.E.3d 365 [2024]).

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion (see People v. Rivera, ––– A.D.3d ––––, 222 N.Y.S.3d 66 [1st Dept. 2024], citing People v. Gomez, 186 A.D.3d 422, 423–424, 129 N.Y.S.3d 60 [1st Dept. 2020]).  As an alternative holding, we find that counsel was not ineffective (see People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004]).