People v. Drake
Opinion
| People v Drake |
| 2024 NY Slip Op 01522 |
| Decided on March 19, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: March 19, 2024
Before: Singh, J.P., González, Scarpulla, Higgitt, Rosado, JJ.
Ind. No. 357/18 Appeal No. 1876 Case No. 2019-2563
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, — NY3d &mdash, &mdash, 2023 NY Slip Op 05968, *2-7 [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, *1; Duncan v Bonta, 83 F4th 803, 805-806 [9th Cir 2023]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: March 19, 2024
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