PEOPLE v. ADAMES (2023)

Judgment, Supreme Court, New York County (Abraham L. Clott, J.), rendered January 27, 2016, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of 31/212 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the surcharge and fees imposed at sentencing, and otherwise affirmed.

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court's decision in (New York State Rifle & Pistol Assn., Inc. v. Bruen, ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment.  “This [preservation] requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established” (People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006]).

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile (People v. Crum, 184 A.D.3d 454, 455, 126 N.Y.S.3d 7 [1st Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 404, 152 N.E.3d 1206 [2020]).  Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03(3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” (id.;  see also People v. McWilliams, 214 A.D.3d 1328,1330, 186 N.Y.S.3d 470 [4th Dept. 2023]).  Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument (People v. Reynolds, 25 N.Y.2d 489, 495, 307 N.Y.S.2d 201, 255 N.E.2d 548 [1969]).  This preservation principle applies to constitutional claims (see e. g. People v. Friola, 11 N.Y.2d 157, 227 N.Y.S.2d 423, 182 N.E.2d 100 [1962] [Fourth Amendment];  People v. Crum, 184 A.D.3d at 455, 126 N.Y.S.3d 7 [1962] [same];  People v. Scott, 126 A.D.3d 645, 646, 6 N.Y.S.3d 247 [1st Dept. 2015], lv denied 25 N.Y.3d 1171, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] [unconstitutional statute];  People v. Lopez, 25 A.D.3d 385, 808 N.Y.S.2d 648 [1st Dept. 2006], lv denied 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255 [2006][Confrontation Clause]).  (People v. Patterson, 39 N.Y.2d 288, 295–296, 383 N.Y.S.2d 573, 347 N.E.2d 898 [1976], affd 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 [1977]), which deals, in pertinent part, with retroactivity and mode of proceedings errors exempt from preservation, is not to the contrary.

We decline to consider defendant's unpreserved argument in the interest of justice.  As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional.

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 A.D.3d 434, 135 N.Y.S.3d 641 [1st Dept. 2021]).