PEOPLE v. MORRIS CALDWELL (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered November 8, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of attempted criminal possession of a weapon in the second degree.  Following negotiations, defendant was afforded the opportunity to plead guilty to the charged crime with the understanding that he would be sentenced to a prison term of five years followed by five years of postrelease supervision.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the agreement, and County Court imposed the agreed-upon sentence.  This appeal ensued.

We affirm.  The People concede, and our review of the record confirms, that defendant's waiver of the right to appeal is invalid (see People v. Finn, 215 A.D.3d 1179, 1180, 187 N.Y.S.3d 447 [3d Dept. 2023], lv denied 40 N.Y.3d 928, 192 N.Y.S.3d 500, 213 N.E.3d 642 [2023];  People v. Hardie, 211 A.D.3d 1418, 1419, 180 N.Y.S.3d 691 [3d Dept. 2022], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023];  People v. Smith, 208 A.D.3d 1538, 1539, 174 N.Y.S.3d 614 [3d Dept. 2022]).  Accordingly, defendant's challenge to the severity of his sentence is not precluded (see People v. Davis, 199 A.D.3d 1123, 1124–1125, 156 N.Y.S.3d 568 [3d Dept. 2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 692, 181 N.E.3d 1120 [2022]).  That said, upon reviewing the record and taking into consideration all of the relevant factors, we do not find the negotiated sentence to be unduly harsh or severe and decline defendant's invitation to reduce it in the interest of justice (see CPL 470.15[6][b];  People v. Turner, 217 A.D.3d 1260, 1261, 192 N.Y.S.3d 291 [2023]).  Defendant's remaining claim – that his conviction under Penal Law § 265.03(3) is unconstitutional in light of the Supreme Court of the United States’ decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) – is unpreserved for our review due to defendant's failure to raise such challenge before County Court (see People v. Maddox, 218 A.D.3d 1154, 1154–1155, 193 N.Y.S.3d 508 [4th Dept. 2023];  People v. Hall, 217 A.D.3d 1501, 1502, 192 N.Y.S.3d 826 [4th Dept. 2023], lv denied 40 N.Y.3d 997, ––– N.Y.S.3d ––––, 219 N.E.3d 868 [2023];  People v. Benjamin, 216 A.D.3d 1457, 1457, 186 N.Y.S.3d 876 [4th Dept. 2023];  People v. Fricke, 216 A.D.3d 1446, 1447, 188 N.Y.S.3d 323 [4th Dept. 2023], lv denied 40 N.Y.3d 928, 192 N.Y.S.3d 515, 213 N.E.3d 657 [2023]).

ORDERED that the judgment is affirmed.

Clark, J.P.

Aarons, Pritzker, Ceresia and Fisher, JJ., concur.