People v Daniels, 2024 NY Slip Op 00874 [224 AD3d 554]

February 20, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Jermelle Daniels, Appellant.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Alexandra Ricks of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Elizabeth T. Schmidt of counsel), for respondent.

Judgment, Supreme Court, New York County (Abraham Clott, J.), rendered October 4, 2018, as amended February 13, 2019, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, unanimously affirmed.

Defendant’s Second Amendment claim requires preservation ( see People v Cabrera , 41 NY3d 35 [2023]), and we decline to review the unpreserved claim in the interest of justice. As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03 (3) is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]), or that he would be entitled to vacatur of his conviction on that basis.

The indictment’s failure to allege that the gun was operable did not render it jurisdictionally defective. By citing Penal Law § 265.03 (3), the indictment alleged all the elements of criminal possession of a weapon in the second degree ( see People v Ray , 71 NY2d 849, 850 [1988]; People v Cook , 150 AD3d 1543 , 1543-1544 [3d Dept 2017]). In any event, the indictment’s reference to “armed felony” adequately alleged the element of operability ( see People v Luis R. , 220 AD3d 549 , 550 [1st Dept 2023]; CPL 1.20 [41]). Concur—Kern, J.P., Singh, Scarpulla, O’Neill Levy, Michael, JJ..