THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT).

The First Department refused to consider a constitutional issue on appeal because the issue was not preserved. Defendant pled guilty in 2016. The defendant argued on appeal that a 2022 US Supreme Court ruling rendered the offense to which he pled guilty, Penal Law 265.03(3), unconstitutional. In order to preserve that issue for appeal, it must have been raised before the trial court in 2016. The US Supreme Court case, New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 [2022]), declared New York’s license requirement for carrying a loaded firearm in public unconstitutional. Defendant pled guilty to possessing a loaded weapon outside his home or business:

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen …), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment. “This [preservation] requirement is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established” … .

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile … . Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” … . Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument … . This preservation principle applies to constitutional claims … .

As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional. People v Adames, 2023 NY Slip Op 02623, Fist Dept 5-16-23

Practice Point: Even if there has been no ruling on the constitutionality of a statute at the time the offense is before the trial court, in order to preserve the constitutional issue it must be raised in the trial court. Here defendant argued a 2022 US Supreme Court ruling finding New York’s firearm licensing requirement unconstitutional rendered the possession-of-a-weapon statute to which he pled guilty in 2016 unconstitutional. The First Department held the issue was not preserved because it was not raised in the trial court in 2016.