THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARLIN JOSEPH DEFENDANT APPELLANT (2023)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). As defendant contends and the People correctly concede, defendant did not validly waive his right to appeal. Supreme Court's oral colloquy mischaracterized the waiver as absolute bar to the taking of an appeal (see People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]; People v Davis, 188 AD3d 1731, 1731 [4th Dept 2020], lv denied 37 NY3d 991 [2021]). Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver did not cure the deficient oral colloquy (see Davis, 188 AD3d at 1732).

Nevertheless, defendant's contention that the statute pursuant to which he was convicted is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v Bruen (— US —, 142 S Ct 2111 [2022]) is not preserved for our review (see People v Jacque-Crews, — AD3d —, —, 2023 NY Slip Op 00785 [4th Dept 2023]; People v Reinard, 134 AD3d 1407, 1409 [4th Dept 2015], lv denied 27 NY3d 1074 [2016], cert denied — US —, 137 S Ct 392 [2016]).

Contrary to defendant's further contention, the sentence is not unduly harsh or severe.

Entered: March 17, 2023

Ann Dillon Flynn

Clerk of the Court