People v Rouse, 2024 NYSlipOp 01380 [225 AD3d 1120]

March 15, 2024

Appellate Division, Fourth Department

[*1]

The People of the State of New York, Respondent,

v

Najee Rouse, Appellant.

Julie Cianca, Public Defender, Rochester (James A. Hobbs of counsel), for defendant-appellant.

Sandra Doorley, District Attorney, Rochester (Amy N. Walendziak of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered April 15, 2021. The judgment convicted defendant upon a guilty plea of attempted criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). Although defendant’s challenge to the constitutionality of Penal Law § 265.03 in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]) would survive even a valid waiver of the right to appeal ( see People v Benjamin , 216 AD3d 1457 , 1457 [4th Dept 2023]), defendant failed to raise a constitutional challenge to the statute before Supreme Court and his challenge is therefore not preserved for our review ( see CPL 470.05 [2]; People v Cabrera , 41 NY3d 35, 39-51 [2023]; People v David , — NY3d —, —, 2023 NY Slip Op 05970, *3-4 [2023]; Benjamin , 216 AD3d at 1457). We decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [3] [c]). Present—Whalen, P.J., Lindley, Ogden, Nowak and DelConte, JJ..