Crimes - Appeal - Preservation of Issue for Review - Constitutional Challenge to Statute

Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered February 26, 2018. The judgment convicted defendant upon a jury verdict of 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 a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant's contention that Penal Law § 265.03 is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]) is unpreserved for our review inasmuch as he failed to raise his constitutional challenge during the proceedings in Supreme Court (see People v Bauza, 224 AD3d 1219, 1220 [4th Dept 2024], lv denied 42 NY3d 925 [2024]; People v Maddox, 218 AD3d 1154, 1154-1155 [4th Dept 2023], lv denied 40 NY3d 1081 [2023]). Defendant's attempt to circumvent the preservation doctrine by framing his argument as a constitutional challenge to his conviction rather than the statute is unpersuasive (see generally People v Brooks, 196 AD3d 914, 915 [3d Dept 2021]). Similarly, defendant's contention that the sentencing procedure pursuant to which he was adjudicated a persistent violent felony offender is unconstitutional in light of the United States Supreme Court's decision in Erlinger v United States (602 US 821 [2024]) is unpreserved for our review (see People v Hernandez, 43 NY3d 591, 597-598 [2025]; see generally People v Cabrera, 41 NY3d 35, 42-46 [2023]). We decline to exercise our power to review defendant's contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant's contention that the sentence constitutes cruel and unusual punishment is also unpreserved for appellate review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see People v Pena, 28 NY3d 727, 730 [2017]; see generally People v Murray, 232 AD3d 1291, 1291-1292 [4th Dept 2024], lv denied 43 NY3d 931 [2025]). We have considered defendant's remaining contentions on appeal and conclude that they do not warrant reversal or modification of the judgment. Present—Bannister, J.P., Montour, Smith, Nowak and Hannah, JJ.