PEOPLE v. BUCKLEY (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jane Tully, J.), rendered June 4, 2019, as amended June 5, 2019, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the second degree.  He appeals from the judgment of conviction.

Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Danielson, 9 NY3d 342, 349).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant was not deprived of the effective assistance of counsel under the New York Constitution.  Viewing the performance of the defendant's counsel in totality, counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712;  People v. Baldi, 54 N.Y.2d 137, 147;  People v. Franks, 137 AD3d 936, 937).  Moreover, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668).

The defendant's contention that Penal Law § 265.03 is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v Bruen (––– U.S. ––––, 142 S Ct 2111), is unpreserved for appellate review since the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Cabrera, ––– NY3d ––––, ––––, 2023 N.Y. Slip Op 05968, *7;  People v. Manners, 217 AD3d 683, 685).  Despite the defendant's contention that any such challenge would have been futile, “because at the time judgment was rendered, this Court and others had unequivocally held that the New York licensing scheme satisfied the Second Amendment ․, the defendant should not be permitted to avoid the consequences of the lack of preservation, because, although Bruen had not yet been decided, the defendant had the same opportunity to advocate for a change in the law as did the litigant who ultimately succeeded in doing so” (People v. Manners, 217 AD3d at 685–686).  “In any event, the defendant's contention is without merit.  The ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes” (id. at 686).

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

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