People v Drake, 2024 NYSlipOp 01522 [225 AD3d 504]

March 19, 2024

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Harvey Drake, Appellant.

Twyla Carter, The Legal Aid Society, New York (Marquetta Christy of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Emily A. Aldridge of counsel), for respondent.

Judgment, Supreme Court, Bronx County (April A. Newbauer, J., at plea; Steven Hornstein, J., at sentencing), rendered January 17, 2019, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him to five years’ probation, unanimously affirmed.

Defendant’s Second Amendment challenge is unpreserved, and we decline to consider it in the interest of justice ( see People v Cabrera , 41 NY3d 35, 39-50 [2023]; People v Guity , 223 AD3d 598 , 599 [1st Dept 2024]). As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.02 (8) 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 ( see Guity , 223 AD3d 598, 599-600; Duncan v Bonta , 83 F4th 803, 805-806 [9th Cir 2023]). Concur—Singh, J.P., González, Scarpulla, Higgitt, Rosado, JJ..