THE PEOPLE OF THE STATE OF NEW YORK v. BILAL GILYARD (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 17, 2026

Appeal from a judgment of the Supreme Court (Roger McDonough, J.), rendered October 24, 2022 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.

Following a traffic stop in June 2019, defendant was charged by indictment with one count of criminal possession of a weapon in the second degree (see Penal Law § 265.03[3] ).  After delays caused largely by his abscondence, defendant pleaded guilty to that sole count in October 2022 and executed a waiver of the right to appeal as a condition of his plea.  Defendant's request for youthful offender status was denied, and he was sentenced to a prison term of eight years, to be followed by three years of postrelease supervision.¹  Defendant appeals.

Although not precluded by his guilty plea or waived by his unchallenged waiver of the right to appeal (see People v. Johnson, _ NY3d _, _, 2025 N.Y. Slip Op 06528, *2 [2025], cert denied _ U.S. _, 146 S Ct 2745 [2026];  People v. Cooper, 251 AD3d 1145, 1146 [3d Dept 2026] ), defendant has failed to preserve his claim that the indictment was jurisdictionally defective, as well as his interrelated challenge to the facial constitutionality of his conviction following the decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022] ) (see People v. Sharp, 42 NY3d 369, 376 [2024];  People v. David, 41 NY3d 90, 95–96 [2023];  People v. Cooper, 251 AD3d at 1146;  People v. Clayton, 247 AD3d 1355, 1356 n [3d Dept 2026] ).^{2  3}  We decline defendant's invitation to take corrective action in the interest of justice (see CPL 470.15[3][c];  People v. Emmanuel D., 238 AD3d 1068, 1070–1071 [2d Dept 2025], lv denied 44 NY3d 1011 [2025];  cf.  People v. Santana, 248 AD3d 1429, 1429–1431 [3d Dept 2026], lv denied 46 NY3d 930 [2026] ).

Defendant also contends that the sentence imposed is violative of the Eighth Amendment and, more broadly, that the sentencing scheme is unconstitutional because it punishes unlicensed possession of a firearm in public more severely than unlicensed possession within one's home or place of business.  Defendant's unchallenged waiver of the right to appeal precludes his Eighth Amendment challenge (see People v.Codett, 246 AD3d 756, 757 [2d Dept 2026], lv denied 45 NY3d 969 [2026];  People v. Foy, 238 AD3d 785, 785 [2d Dept 2025] ).  Additionally, though surviving his waiver of appeal, defendant's challenge to the disparity in the permissible sentences for these offenses is unpreserved (see People v. Williams, 251 AD3d 1289, 1293 [3d Dept 2026];  People v. Cooper, 251 AD3d at 1146), and, nevertheless, we have previously found this argument to be without merit (see People v. Santana, 248 AD3d at 1432).

Finally, defendant's challenge to Supreme Court's denial of his request for youthful offender status is likewise precluded by his unchallenged waiver of the right to appeal (see People v. Donovan QQ., 247 AD3d 1352, 1354 [3d Dept 2026], lv denied 45 NY3d 1040 [2026];  People v. Butler, 232 AD3d 935, 936 [3d Dept 2024], lv denied 43 NY3d 929 [2025] ) and, even so, the court providently exercised its discretion (see People v. Gilyard, 249 AD3d 1222, 1226–1227 [3d Dept 2026] ).

Clark, J.P., Ceresia, McShan and Ryba, JJ., concur.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   This prison term was directed to be served concurrently to a prison term imposed on another conviction (see People v. Gilyard, 249 AD3d 1222 [3d Dept 2026] ).

2.   Defendant's omnibus motion was filed and decided prior to the decision in Bruen;  however, because he pleaded guilty after issuance of that decision, he had the opportunity to lodge these arguments before Supreme Court and failed to do so.

3.   To the extent defendant passingly claims that Penal Law § 265.03(3) is unconstitutional as applied to him, such argument is precluded by his unchallenged appeal waiver (see People v. Batista, 248 AD3d 669, 669–670 [1st Dept 2026], lv denied 45 NY3d 1036 [2026] ).

Powers, J.