PEOPLE v. MOISE (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered May 17, 2019, convicting him of criminal possession of a weapon in the second degree, criminally negligent homicide, reckless endangerment in the first degree, reckless endangerment in the second degree (two counts) and operating a motor vehicle while under the influence of alcohol or drugs, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contentions that the jury verdict finding him guilty of criminally negligent homicide and reckless endangerment in the first degree is repugnant, and that acquittal on the depraved indifference murder count rendered repugnant those convictions, are not preserved for appellate review, as the defendant failed to raise those contentions before the formal discharge of the jury at trial (see People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Williams, 211 A.D.3d 1055, 1057–1058, 180 N.Y.S.3d 295;  People v. Alman, 185 A.D.3d 714, 716, 126 N.Y.S.3d 730).

Further, the defendant's contention regarding the constitutionality of Penal Law § 265.03(3) is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Manners, 217 A.D.3d 683, 685–686, 191 N.Y.S.3d 90;  People v. McDowell, 214 A.D.3d 1437, 1438–1439, 186 N.Y.S.3d 473;  People v. Mabry, 214 A.D.3d 1300, 1301, 185 N.Y.S.3d 450).

We decline to review the defendant's unpreserved contentions in the exercise of our interest of justice jurisdiction.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DILLON, J.P., DUFFY, GENOVESI and TAYLOR, JJ., concur.