PEOPLE v. AHMED (2022)

Judgment of conviction (Gilbert C. Hong, J.), rendered May 2, 2016, modified, as a matter of discretion in the interest of justice, to the extent of vacating the mandatory surcharge, and otherwise affirmed.

Defendant's contention that the ban on civilian possession and use of stun guns, contained in Penal Law § 265.01(1), violated the Second Amendment right to bear arms is unpreserved for appellate review, and we decline to review it in the interest of justice. As an alternative holding, we find that defendant lacks standing to challenge the constitutionality of Penal Law § 265.01(1). Defendant pleaded guilty solely to a charge of disorderly conduct pursuant to Penal Law § 240.20. He may not use this disorderly conduct conviction as a “device ․ to attack the constitutionality of another statute, [Penal Law § 265.01(1)], the statute under which he was [charged] but which is wholly irrelevant to his present conviction” (People v Di Raffaele, 55 NY2d 234, 241 [1982]; see People v Knight, 169 AD3d 493, 494 [2019], lv denied 33 NY3d 978 [2019]).

Based on our own interest of justice powers and the People's consent, we vacate the surcharge and fees imposed at sentencing (see People v Chirinos, 190 AD3d 434 [2021]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur