PEOPLE v. BENJAMIN FOSTER (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 an absolute bar to the taking of an appeal (see People v. Thomas, 34 N.Y.3d 545, 565-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]; People v. Davis, 188 A.D.3d 1731, 1731, 136 N.Y.S.3d 638 [4th Dept. 2020], lv denied 37 N.Y.3d 991, 152 N.Y.S.3d 415, 174 N.E.3d 355 [2021]). Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver did not cure the defects in the oral colloquy (see Davis, 188 A.D.3d at 1732, 136 N.Y.S.3d 638).

Defendant contends that Penal Law § 265.03 (3) is unconstitutional in light of the United States Supreme Court's decision in New York Rifle & Pistol Assn., Inc. v. Bruen, ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Inasmuch as defendant failed to raise a constitutional challenge to the statute before the court, any such contention is not preserved for our review (see People v. Jacque-Crews, 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2023]; People v. Reese, 206 A.D.3d 1461, 1462, 170 N.Y.S.3d 375 [3d Dept. 2022]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Contrary to defendant's contention, we conclude that his constitutional challenge is not exempt from the preservation rule (see People v. Thomas, 50 N.Y.2d 467, 472-473, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980]; Jacque-Crews, 213 A.D.3d at 1336, 183 N.Y.S.3d 234).

Defendant contends that his term of interim probation was revoked without due process of law. That contention is not preserved for our review (see People v. Alsaaidi, 173 A.D.3d 1836, 1837, 104 N.Y.S.3d 464 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 278, 147 N.E.3d 548 [2020]; People v. Butler, 151 A.D.3d 1959, 1960, 55 N.Y.S.3d 569 [4th Dept. 2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017]; see also People v. Peckham, 195 A.D.3d 1437, 1438, 145 N.Y.S.3d 475 [4th Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 397, 174 N.E.3d 337 [2021]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Defendant further contends that the court did not properly consider whether he should receive youthful offender status because it had predetermined that he would not receive youthful offender status if he violated his conditions of interim probation. We reject that contention. The court advised defendant during the plea colloquy that it could adjudicate him a youthful offender in its discretion, even if defendant violated the conditions of interim probation. After finding that defendant had violated the conditions of interim probation, the court at sentencing considered the appropriate factors before exercising its discretion to not grant defendant youthful offender status (see generally People v. Rudolph, 21 N.Y.3d 497, 499, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013]; People v. Rice, 175 A.D.3d 1826, 1826, 109 N.Y.S.3d 808 [4th Dept. 2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 511, 141 N.E.3d 467 [2020]).

We decline defendant's request that we exercise our discretion in the interest of justice to afford him youthful offender status (see People v. Martin, 199 A.D.3d 1402, 1402, 154 N.Y.S.3d 557 [4th Dept. 2021], lv denied 37 N.Y.3d 1162, 160 N.Y.S.3d 723, 181 N.E.3d 1151 [2022]; People v. Spencer, 197 A.D.3d 1004, 1005, 153 N.Y.S.3d 361 [4th Dept. 2021], lv denied 37 N.Y.3d 1099, 156 N.Y.S.3d 776, 178 N.E.3d 423 [2021]). Finally, contrary to defendant's contention, the sentence is not unduly harsh or severe.