People v. Clinton

• Docket Number: 978 KA 19-02220
• Decision Date: 22 December 2023
• Citation: 2023 NY Slip Op 06675
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. COREY CLINTON, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 06675

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. COREY CLINTON, DEFENDANT-APPELLANT.

No. 978 KA 19-02220

Supreme Court of New York, Fourth Department

December 22, 2023

JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY II, OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CURRAN, MONTOUR, GREENWOOD, AND NOWAK JJ.

Appeal from a judgment of the Monroe County Court (John L. DeMarco J.), rendered August 16, 2019. The judgment convicted defendant upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree (two counts).

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 murder in the second degree (Penal Law § 125.25 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]), stemming from the shooting death of the victim. We affirm.

Defendant contends that County Court erred in granting the People's for-cause challenge to a prospective juror. Because defendant failed to object to the court's ultimate ruling on that for-cause challenge after the court conducted additional voir dire of the prospective juror, thereby acquiescing in the ruling, we conclude that defendant's contention is unpreserved for our review (see CPL 470.05 [2]; People v Smith, 200 A.D.3d 1689, 1691 [4th Dept 2021], lv denied 38 N.Y.3d 954 [2022]; People v Crumpler, 163 A.D.3d 1457, 1460 [4th Dept 2018], lv denied 32 N.Y.3d 1003 [2018], reconsideration denied 32 N.Y.3d 1125 [2018]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant also contends that his conviction of criminal possession of a weapon in the second degree under count 3 of the indictment (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 (597 U.S. 1 [2022]). Defendant failed to raise a constitutional challenge before the trial court, however, and therefore any such contention is unpreserved for our review (see People v Jacque-Crews, 213 A.D.3d 1335, 1335-1336 [4th Dept 2023], lv denied 39 N.Y.3d 1111 [2023]; see generally People v Davidson, 98 N.Y.2d 738, 739-740 [2002]; People v Reinard, 134 A.D.3d 1407, 1409 [4th Dept 2015], lv denied 27 N.Y.3d 1074 [2016], cert denied 580 U.S. 969 [2016]). Contrary to defendant's contention, his "challenge to the constitutionality of [his conviction under the] statute must be preserved" (People v Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408 [2006], rearg denied 7 N.Y.3d 742 [2006]; see People v Cabrera, ___ N.Y.3d ___, ___, 2023 NY Slip Op 05968, *2-7 [2023]), and the mode of proceedings exception to the preservation requirement does not apply (see People v David, ___ N.Y.3d ___, ___, 2023 NY Slip Op 05970, *3-4 [2023]). We decline to exercise our power to review defendant's constitutional challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Finally, contrary to defendant's contention, the court did not err in imposing consecutive sentences. The court sentenced defendant to, inter alia, an indeterminate term of 25 years to life on the murder count, and a consecutive determinate term of five years, plus five years of postrelease supervision, on count 3 of the indictment charging him with "simple" weapon possession (Penal Law § 265.03 [3]). When a defendant is so charged, "[s]o long as [the] defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible" (People v Brown, 21 N.Y.3d 739, 751 [2013]; see People v Malloy, 33 N.Y.3d 1078, 1080 [2019]).

Here the evidence at trial establishes that, on the night of the shooting, defendant and the victim were talking outside a corner store. After about 10 to 15 minutes of conversation, defendant pulled out a gun and shot the victim once in the head. We conclude that...