People v. Stone ( 2024 )

People v Stone (2024 NY Slip Op 05146)

People v Stone

2024 NY Slip Op 05146

Decided on October 17, 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: October 17, 2024
Before: Renwick, P.J., Moulton, Friedman, Higgitt, Rosado, JJ.

Ind No. 3145/19 Appeal No. 2849 Case No. 2022-05805

[*1]The People of the State of New York, Respondent,

v

Kyeone Stone, Defendant-Appellant.

Jenay Nurse Guilford, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Andrew H. Chung of counsel), for respondent.

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered December 7, 2022, convicting defendant, upon a plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years to be followed by five years of postrelease supervision, unanimously affirmed.

Defendant's challenge to the constitutionality of his 2016 gun possession conviction, which the court relied on to adjudicate him a second violent felony offender in the instant case, is both unpreserved and waived based on defendant's failure to challenge the predicate conviction as unconstitutional at sentencing (see CPL 400.15[7][b]; People v Lara, 167 AD3d 446, 448 [1st Dept 2018], lv denied 32 NY3d 1206 [2019]). We reject defendant's contention that counsel was ineffective in failing to challenge the predicate conviction and thus that he has established good cause for the omission. A challenge to defendant's prior conviction based on New York State Rifle & Pistol Association v Bruen (597 US 1 [2022]) would have been futile (see e.g. People v Cherif, 220 AD3d 543, 543 [1st Dept. 2023], lv denied 40 NY3d 1079 [2023]; People v DeLarosa, 219 AD3d 1230 [1st Dept. 2023], lv denied 40 NY3d 1080 [2023]; see also People v Williams, 35 NY3d 24, 45 [2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 17, 2024