PEOPLE v. WILSON (2023)

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Craig S. Walker, J.), both rendered July 7, 2021, convicting him of criminal possession of a firearm under Indictment No. 3722/19, and criminal possession of a firearm under Indictment No. 1113/19, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of mandatory surcharges and fees;  as so modified, the judgments are affirmed.

The defendant was charged with criminal possession of a weapon in the second degree (see Penal Law § 265.03[3]) and criminal possession of a firearm (see Penal Law § 265.01–b[1]), among other crimes, in two separate indictments in connection with acts that allegedly occurred on two separate dates.  The defendant subsequently entered a plea of guilty to one count, in each indictment, of criminal possession of a firearm.

The defendant's contention that Penal Law §§ 265.01–b and 265.03(3) are unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387, is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Cabrera, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968;  People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90, 2023 N.Y. Slip Op. 03017, at *2 [2d Dept.];  People v. McDowell, 214 A.D.3d 1437, 1438–1439, 186 N.Y.S.3d 473;  People v. Reese, 206 A.D.3d 1461, 1462, 170 N.Y.S.3d 375).  In any event, the defendant's contention is without merit (see People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90, 2023 N.Y. Slip Op. 03017, at *2).

However, as consented to by the People, we modify the judgments by vacating the mandatory surcharges and fees imposed upon the defendant at sentencing (see CPL 420.35[2–a][c];  People v. King, 212 A.D.3d 844, 844–845, 180 N.Y.S.3d 543;  People v. Danso, 208 A.D.3d 1363, 1364, 174 N.Y.S.3d 602;  People v. Reeves, 203 A.D.3d 1181, 163 N.Y.S.3d 439).

The defendant's remaining contentions either are without merit or need not be reached in light of our determination.

BRATHWAITE NELSON, J.P., MALTESE, FORD and WARHIT, JJ., concur.